An order of the United States Circuit Court remanding the cause
to the state court is not reviewable here,
Missouri Pacific Ry.
v. Fitzgerald, 160 U. S. 556, nor
can this object be accomplished by indirection.
Where the state court, in denying a second petition for removal,
simply bows to the decision of the federal court when it remanded
the record after the first attempt to remove, it does not deny any
federal right of the petitioner within the meaning of § 709,
Rev.Stat.
Where the second petition to remove presents no different
question from that presented by the first, it is proper for the
state court to follow the decision of the federal court remanding
the record and deny the petition.
Page 228 U. S. 279
In this case, it does not appear that any different questions
were presented on the second petition than on the first, and if any
federal right of the petitioner to remove was denied, it was denied
by the federal, and not by the state, court.
Whether individual members of a copartnership should be joined
as defendants or substituted for the copartnership in a suit
brought against the partnership under a state law permitting
copartnerships to be sued as entities is a question of local law
only cognizable in this Court so far as it may elect the right to
remove.
This Court, having no jurisdiction to review the remanding order
of the Circuit Court which the state court followed in denying a
second petition to remove, refrains from expressing any opinion
upon the correctness of that order.
Writ of error to review 121 N.W. 1039 dismissed.
The facts, which involve the jurisdiction of this Court under §
709, Rev.Stat., to review a decree of the state court denying a
second petition for removal of the cause from the federal court,
are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
This writ of error is sued out under § 709, Rev.Stat., and
brings up a judgment of the Supreme Court of Iowa, affirming a
judgment of the district court of one of the counties of that state
in an action brought by the defendants in error against "McLaughlin
Brothers, a Corpartnership," named among the plaintiffs in error.
The individual plaintiffs in error, John R. McLaughlin and James B.
McLaughlin, who allege themselves to be "sole
Page 228 U. S. 280
members of the copartnership," were not named as defendants at
the inception of the action. Their relation to it will appear from
what follows.
It is claimed by the plaintiffs in error that they were entitled
to remove the cause to the appropriate federal circuit court on the
ground of diversity of citizenship (there being no question that
the matter in dispute, exclusive of interest and costs, exceeded
$2,000), and that the decision of the state court deprived them of
the right of removal. The cause was once removed to the federal
court and by that court remanded. A subsequent petition for removal
was refused by the county district court. It is the decision of the
supreme court, in affirming the judgment of the district court,
notwithstanding such refusal, that is now assigned for error. The
circumstances of the case are peculiar, and require a somewhat
particular recital.
The action was commenced by petition filed by defendants in
error in the district court, naming as defendant "McLaughlin
Brothers, a copartnership," and claiming $3,000 damages for
breaches of warranty in the sale of certain horses. The petition
alleged (
inter alia) that defendant was a nonresident of
the State of Iowa, and that it was a partnership, with headquarters
at Columbus, Ohio, and with a branch at Emmetsburg, Iowa. The
transactions out of which the alleged causes of action arose were
stated to have occurred in Iowa, and the alleged contracts to have
been made in that state. At the same time, the plaintiffs filed in
the district court an attachment bond, and caused a writ of
attachment to be issued to the sheriff of the county, who,
according to the record,
"thereunder garnisheed the United States Express Company, by
serving on such garnishee notice of garnishment, and made return of
such service."
Thereafter, the defendants filed a petition and bond for removal
of the cause into the United States Circuit Court
Page 228 U. S. 281
for the Northern District of Iowa upon the ground of diversity
of citizenship. The opening words of the petition were:
"Come now the above-named defendants, and respectfully show to
the court that they are a copartnership composed of John R.
McLaughlin and James B. McLaughlin, sole partners in and members of
said copartnership, doing business at the city of Columbus, in the
State of Ohio. That, at the time of the commencement of this
action, and ever since, and now, the said copartnership, McLaughlin
Brothers, and the said James B. McLaughlin and John R. McLaughlin,
and each of them, were and are residents, citizens, and inhabitants
of the State of Ohio; . . . that the plaintiffs hereinabove named,
and each of them at the time of the commencement of this action,
were and still are residents, citizens, and inhabitants of the
State of Iowa, and not of the State of Ohio."
The remaining averments were in the usual form. The cause was
removed accordingly.
After some time, the federal court made an order remanding it,
the substance of which is as follows,
viz.:
"The court, being advised in the premises, finds that this Court
has not jurisdiction of said cause, and sustains said motion [for a
remand]. It is ordered and adjudged that said cause be and the same
is hereby remanded to the District Court of Iowa in and for
Pocahontas County, from whence the same came, this Court not having
jurisdiction by reason of lack of evidence in the transcript filed
herein, that said defendant had been served with notice of said
proceedings."
The record shows that, after a duly authenticated copy of this
order had been filed in the district court, "John R. McLaughlin and
James B. McLaughlin appeared in said cause," but without previous
leave of the court, and filed a written motion setting up
"That they are the sole members and partners in the
above-mentioned firm of McLaughlin Brothers and the sole parties
defendant
Page 228 U. S. 282
in interest herein, and that they are the parties and the sole
parties that are sued under the firm name of McLaughlin
Brothers,"
and then, after averring diversity of citizenship, and that the
matter in dispute exceeded $2,000, the motion proceeded as
follows:
"That these parties are entitled to have this action tried in
the Circuit Court of the United States in and for the Northern
District of Iowa; that the only effect of maintaining this action
against these defendants in their partnership name is to prevent a
removal of the action to the said United States circuit court;
wherefor the said John R. McLaughlin and James B. McLaughlin move
the court (1), for an order herein substituting these defendants in
their individual names as sole parties defendant herein, and
permitting them to appear herein and answer and defend in their
said individual names; (2) if the foregoing is overruled, then that
an order be made joining the said John R. McLaughlin and James B.
McLaughlin as parties defendant herein, in their individual names,
and permitting them to appear, answer, and defend in their
individual names."
Upon the same date, "[t]he said defendants, McLaughlin Brothers,
appeared in said cause and filed therein their application for
substitution of parties," etc., adopting the statements and
allegations contained in the motion of the individuals as above
quoted, and thereupon moving the court that the said individuals be
either substituted in place of the defendants, McLaughlin Brothers,
as sole defendants, or else joined as codefendants with the
firm.
And at the same time, the partnership and the individuals filed
a petition, in the name of the individuals, for the removal of the
cause to the United States circuit court, upon the same ground of
diversity of citizenship that was set up in the first petition for
removal. A proper bond was also filed.
To this second petition for removal and to the accompanying
Page 228 U. S. 283
motions for substitution, etc., the plaintiffs in the action
filed written objections, based in part upon the ground that the
individual partners were not parties to the action, and not
entitled to make a motion for substitution, or to be joined as
parties; that the plaintiffs were entitled to bring their action
against the copartnership without joining as defendants the members
of the firm, and they having exercised this option, the members of
the firm were not, as against the plaintiffs' objection, entitled
to be either substituted or joined as parties, and that the
individual partners were not entitled to have the action tried in
the circuit court of the United States. The district court
sustained these objections, and denied the several motions and the
petition for removal.
Thenceforward, the action appears to have proceeded in the
district court as against the partnership alone . "A Plea to
Jurisdiction and Answer" was filed, which repeated the averments
upon which the petitions for removal had been based, set up the
filing of those petitions and bonds and the several applications
for substitution or joinder of the individuals as parties
defendant, and averred that, by reason of the premises, the state
court had no jurisdiction to proceed further. Answer was at the
same time made to the merits, and the action was thus brought to an
issue.
There appears to have been a trial, resulting in a directed
verdict for the defendants and a judgment thereon, from which the
plaintiffs appealed to the Supreme Court of Iowa, where there was a
reversal and award of a new trial. The transcript of the record as
presented here is silent on the subject, but we are referred to the
report of the case on the first appeal, 136 Ia. 279.
Upon the second trial, the defendants offered evidence to
support the averments of the plea to the jurisdiction, which was
overruled as irrelevant. A motion to direct a verdict in favor of
defendants on the ground that, because
Page 228 U. S. 284
of the proceedings for removal, the district court had no
jurisdiction was likewise overruled. There was a verdict and
consequent judgment for the plaintiffs for $3,755.02, which, upon
appeal, was affirmed by the Supreme Court of Iowa (121 N.W. 1039),
and the present writ of error was sued out.
Except for the opinion delivered by the supreme court upon the
second appeal, there is nothing in the record to show what
questions were raised in that court. After referring to the first
appeal, as reported in 136 Ia. 279, which admittedly raised no
question of federal right, the opinion proceeds as follows:
"But one new question is here presented, and that arises on the
following facts: this action was commenced in December, 1903. It
was transferred to the United States circuit court upon the
defendants' application, where it was remanded to the state court
because of want of jurisdiction of the federal court. In January,
1905, the defendants filed an application in the District Court for
the substitution of John R. and James B. McLaughlin as defendants.
This was denied, and since such denial, both trials have taken
place and more than three years elapsed, and the defendants now
appeal from the order denying substitution. There was no right of
substitution. The statute, Code, § 3468, expressly provides that a
partnership may sue or be sued as a distinct legal entity. [Citing
cases.] Under this statute, the plaintiffs had the absolute right
to sue the partnership alone, or to join in such suit the
individual members of the partnership. They chose the former
course, and they cannot be deprived of such right upon the
application of the partnership or of the individual members
thereof. [Citing cases.] The plaintiffs clearly had the right to
sue McLaughlin Brothers, the partnership, alone. This they could
not do in the federal court, and the case was therefore not
removable.
Ex Parte Wisner, 203 U. S.
449. "
Page 228 U. S. 285
It is contended here that the state court deprived the
plaintiffs in error of a federal right by giving such effect to the
local code as to cut off the right of removal.
The statute under which plaintiffs brought their action is as
follows:
"Actions may be brought by or against a partnership as such, or
against all or either of the individual members thereof, or against
it and all or any of the members thereof, and a judgment against
the firm as such may be enforced against the partnership property,
or that of such members as have appeared or been served with
notice. A new action may be brought against the members not made
parties, on the original cause of action."
Code, 1897, § 3468.
The gist of the argument for the plaintiffs in error is that
this section, whatever its effect upon the practice of the state
courts, cannot interfere with a right of removal to the federal
courts given by the Act of Congress; that the real parties in
interest as defendants in the state court were the individual
partners, and since they were citizens of Ohio, while the
plaintiffs in the state court were citizens of Iowa, the defendants
had the right of removal although sued in the partnership name;
that the order of the federal circuit court remanding the cause
after the first removal was limited in its effect because based
upon lack of evidence in the transcript that plaintiffs in error
had been served with notice of the proceedings, and that the
defendants, on thereafter appearing and filing motions for
substitution, etc., were entitled to renew the application for
removal, and, since they did this, the state court ought to have
admitted the individual partners as defendants in order to enable
them to assert the right or removal that is alleged to result from
their interest in the suit and the diversity of citizenship between
them as individuals and the plaintiffs, and that, in denying the
applications of the plaintiffs in error, made in this behalf after
the remanding
Page 228 U. S. 286
order was filed, the state court deprived them of a federal
right.
We are confronted at the outset with the question of the
jurisdiction of this Court to review the action of the state court
in the premises.
That the order of the United States circuit court remanding the
cause to the state court is not reviewable here is settled by
Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.
S. 556. In that case, this Court declared (at p.
160 U. S.
582):
"If the circuit court remands a cause, and the state court
thereupon proceeds to final judgment, the action of the circuit
court is not reviewable on writ of error to such judgment. A state
court cannot be held to have decided against a federal right when
it is the circuit court, and not the state court, which has denied
its possession. The Supreme Court of Nebraska rightly recognized
the courts of the United States to be the exclusive judges of their
own jurisdiction, and declined to review the order of the circuit
court. As, under the statute, a remanding order of the circuit
court is not reviewable by this Court on appeal or writ of error
from or to that court, so it would seem to follow that it cannot be
reviewed on a writ of error to a state court, the prohibition being
that 'no appeal or writ of error from the decision of the circuit
court, remanding such cause, shall be allowed.' And it is entirely
clear that a writ of error cannot be maintained under § 709 in
respect of such an order, where the state court has rendered no
decision against a federal right, but simply accepted the
conclusion of the circuit court."
It is fundamental that plaintiffs in error, being debarred from
bringing the remanding order under the review of this Court, cannot
accomplish the same object by indirection. And if the state court,
in denying the second petition for removal, did no more than bow to
the decision and order of the federal court when it remanded
the
Page 228 U. S. 287
record, it did not deny any federal right of the plaintiffs in
error within the meaning of § 709, Rev.Stat. That it was proper to
deny the second petition if it presented no different question from
that presented by the first is plain.
St. Paul & Chicago R.
Co. v. McLean, 108 U. S. 212,
108 U. S. 217;
Chesapeake & Ohio Ry. Co. v. McCabe, 213 U.
S. 207,
213 U. S.
217.
This brings us to the question whether, between the filing of
the first petition for removal and the second, there had been any
change in the situation presenting the right of removal upon a
better ground than that which was overruled by the United States
circuit court when it remanded the cause. As already mentioned, the
insistence is that the remanding order was based upon the fact that
the defendants had not been served with notice of the proceedings,
and it is insisted that this difficulty was obviated by the
subsequent appearances and motions. In order to pass upon this
contention, we should first examine the state practice.
Under the Iowa Code 1897, § 3514, action in a court of record is
commenced by serving the defendant with a notice, informing him of
the name of the plaintiff, that a petition is, or by a date named
therein will be, filed in the office of the clerk of the court
wherein action is brought, naming it, and stating in general terms
the cause of action, and that, unless the defendant appears and
defends before a stated time, his default will be entered and
judgment or decree rendered against him. The sections following
provide the method of making personal and substituted service, and,
in case of absent defendants, service by publication in certain
cases. By § 3541 it is prescribed that the mode of appearance may
be by delivering to the plaintiff or the clerk of the court a
written memorandum of appearance, signed by the defendant or his
attorney; or by entering an appearance in the appearance docket or
judge's calendar, or by announcing to the court an
Page 228 U. S. 288
appearance, which shall be entered of record; or
"by an appearance, even though specially made, by himself or his
attorney, for any purpose connected with the cause, or for any
purpose connected with the service or insufficiency of the notice,
and an appearance, special or other, to object to the substance or
service of the notice, shall render any further notice unnecessary,
but may entitle the defendant to a continuance,"
etc.
By §§ 3876 to 3878, it is provided that the plaintiff in a civil
action may cause the property of the defendant, not exempt from
execution, to be attached at the commencement or during the
progress of the proceedings, but if this be done subsequent to the
commencement of the action, a separate petition must be filed, and
"in all cases the proceedings relative to the attachment are to be
deemed independent of the ordinary proceedings, and only auxiliary
thereto." The grounds upon which an attachment may be procured are,
that the defendant is a foreign corporation, or acting as such, or
is a nonresident of the state, or is about to remove his property
out of the state, or has disposed or is about to dispose of his
property with intent to defraud his creditors, etc., etc. By §
3897, property of defendant in the possession of another, or debts
due to defendant, may be attached by garnishment. By § 3924, if
judgment is rendered for the plaintiff in any case in which an
attachment has been issued, the court is to apply in satisfaction
thereof any money seized by or paid to the sheriff under the
attachment, and the proceeds of sales of other attached property.
Subsequent sections provide for the mode of giving notice to a
garnishee, and for obtaining a judgment against him. By § 3947,
such judgment shall not be entered until the principal defendant
shall have had ten days' notice of the garnishment proceedings.
Sec. 3948 permits the defendant in the main action to set up, by a
suitable pleading filed in the garnishment proceedings, facts
Page 228 U. S. 289
showing that the debt or the property with which it is sought to
charge the garnishee is exempt from execution, or for any other
reason is not liable for plaintiff's claim.
The state courts have held that the effect of § 3541 is to
subject a defendant who comes into court for any purpose connected
with the cause (even under a "special" appearance) to the general
jurisdiction of the court.
Des Moines State Bank v. Van,
12 I. 523;
Robertson v. Eldora R. Co., 27 Ia. 245, 248;
McFarland v. Lowry, 40 Ia. 467;
Johnson v.
Tostevin, 60 Ia. 46;
Lesure Lumber Co. v. Mutual Fire Ins.
Co., 101 Ia. 514, 519;
Locke v. Chicago Chronicle
Co., 107 Ia. 390, 395;
Rummelhart v. Boone, 147 Ia.
390. As to whether this is "due process of law" in the state courts
within the meaning of the Fourteenth Amendment,
see York v.
Texas, 137 U. S. 15;
Kauffman v. Wootters, 138 U. S. 285. As
to the applicability of the rule of practice to the federal courts
under the Conformity Act (Rev.Stats. § 914),
see Southern
Pacific Co. v. Denton, 146 U. S. 202,
146 U. S. 208;
Mexican Central Ry. Co. v. Pinkney, 149 U.
S. 194,
149 U. S.
203.
With respect to § 3468, permitting actions to be brought against
a partnership as such, or against all or either of the individual
members thereof, or against the partnership and all or any of the
members thereof, and declaring that a judgment against the firm as
such may be enforced against the partnership property, or that of
such members as have appeared or been served with notice, the
courts of Iowa have construed this as dealing with the partnership
as an entity distinct from the individual members, and as
conferring upon the plaintiffs the option of suing the partnership
alone instead of joining in the suit the individual members of the
firm. In so holding in the present case, the Supreme Court of Iowa
did but follow previous decisions of the same court.
Brumwell
v. Stebbins, 83 Ia. 425, 428;
Ruthven v. Beckwith, 84
Ia. 715, 717;
Baxter v. Rollins, 110 Ia. 310.
Page 228 U. S. 290
The United States circuit court, in remanding the cause,
followed its previous decision in
Ralya Market Co. v. Armour
& Co., 102 F. 530. This likewise was an action brought
under § 3468 of the Code of Iowa against a copartnership, without
service upon the individual partners. It was remanded on the ground
that in that form the cause was not removable, for the reason that
it was not an action of which the federal court could have taken
jurisdiction originally if brought in the first instance in that
court, and this because citizenship within the meaning of the
federal Constitution could not be predicated of a partnership, and
so there could be no diversity of citizenship. Two decisions of
this Court were relied upon as authority for this view:
Chapman
v. Barney, 129 U. S. 677,
129 U. S. 682;
Great Southern Hotel Co. v. Jones, 177 U.
S. 449,
177 U. S. 454.
(
And see Thomas v. Board of Trustees, 195 U.
S. 207,
195 U. S.
211.) At the same time, the court said (102 F. at p.
534):
"If the partners had applied to the state court to be
substituted as defendants in place of the firm, so that the suit
would then have been only against the individuals, partners doing
business under the firm name, the case might possibly then have
been removable, as it would have been then pending against the
individuals only, and the citizenship of the defendants could then
have been shown to be different from that of the plaintiff."
And see Bruett & Co. v. Austin Drainage Excavator
Co., 174 F. 668, 672.
It is clear, therefore, that the federal court, in remanding the
present case, did so upon the ground that the individual members of
the firm had not been joined as parties, and that, under the Iowa
practice of suing the partnership as a separate entity, there was,
within the meaning of the removal act, no diversity of citizenship.
And it is equally plain that the clause
"[t]his Court not having jurisdiction by reason of lack of
evidence in the transcript filed herein that said defendant had
been served
Page 228 U. S. 291
with notice of said proceedings"
was inserted in order to enable the partners to apply to the
state court to be substituted as defendants in the place of the
firm, and then raise the question whether the action in its changed
form was removable, as the opinion just cited intimated that it
might be. Of this opportunity the defendants availed themselves, as
already shown.
The construction we have placed upon the qualifying clause
quoted from the remanding order is evidently correct, from what has
already been said. Such was the construction placed upon it by the
subsequent conduct of the defendants in the state court. And the
same construction is, in effect, conceded in their briefs in this
Court, which state that
"the order remanding the cause upon the first removal was upon
the specific ground of lack of evidence in the transcript that
plaintiffs in error had been served with notice of the
proceedings."
And again,
"The case having been remanded solely because of absence of
notice, the defendants, on appearing and filing motions for a
substitution, were entitled to renew their applications for
removal."
And still again,
"The plaintiffs in error sought by motion for substitution, in
accordance with the suggestion in
Ralya Market Co. v. Armour
& Co., 102 F. 530, to eliminate this question,"
referring to the question of
"the supposed inability of the federal court to entertain an
action against a partnership, which has been the constant claim of
the defendants in error in the lower courts, and which plaintiffs
in error sought to obviate."
The clause quoted from the remanding order hardly admits, we
think, of the construction that the reason for denying the
jurisdiction was that the copartnership defendant (as distinguished
from the individual partners) had not been served with notice of
the suit or of the attachment proceedings, for such nonservice, if
it rendered the proceedings defective, was not waived by the
presentation
Page 228 U. S. 292
of a petition for removal, but, on the contrary, was one of the
very matters that might be adjudicated upon by the circuit court
(
Goldey v. Morning News, 156 U. S. 518,
156 U. S. 523;
Wabash Western Ry. v. Brow, 164 U.
S. 271,
164 U. S. 279;
Clark v. Wells, 203 U. S. 164,
203 U. S. 171;
Mechanical Appliance Co. v. Castleman, 215 U.
S. 437,
215 U. S. 441;
Davis v. C., C.C. & St.L. Ry., 217 U.
S. 157,
217 U. S.
174). And it is unreasonable to construe the remanding
order as meaning that service of notice upon the copartnership
defendant was necessary to initiate the proceeding so as to make it
a "suit" within the meaning of § 3514 of the state Code, as
distinguished from as "independent" or "auxiliary" proceeding by
attachment, within the meaning of § 3877 (
see In re
Receivership of Iowa & Minnesota Construction Co.,6 F.
799, 801;
Long v. Long, 73 F. 369, 372;
Bank v.
Turnbull & Co., 16 Wall. 190,
83 U. S. 195),
because it would seem clear that notice to the copartnership, as
such, sufficient at least, to constitute the proceeding a suit or
controversy within the meaning of the state practice, and so as to
bring it within the reach of the removal act, was evidenced by the
filing of the first petition for removal, which, as above stated,
was made in the name of the copartnership, and set forth an
appearance by the copartnership for the purpose of asserting the
right of removal, and, as we have seen, such an appearance, under §
3241 of the Code, rendered further notice unnecessary so far as the
requirements of the state practice were concerned.
Having, as already pointed out, no jurisdiction to review the
remanding order, we intend no expression of opinion upon the
correctness of the grounds upon which it was based, and have dealt
thus at length with the construction of its language only because
we are concerned with the effect that was given and ought properly
to have been given to it by the state court.
Whatever construction may be placed upon it, we
Page 228 U. S. 293
cannot see that the plaintiffs in error by the subsequent
proceedings gave themselves any better right to removal than that
which was asserted by the first petition, was then acceded to by
the state court, and was overruled by the circuit court in
remanding the cause.
Reliance is placed upon
Powers v. Chesapeake & Ohio
Ry., 169 U. S. 92,
169 U. S. 100,
and
Fritzlen v. Boatmen's Bank, 212 U.
S. 364,
212 U. S. 372.
But those cases dealt with a change in the situation in the state
court after an order of remand had been made, and resulting from
subsequent dealings or conduct of the parties, in which the
opposing party participated. They are not pertinent here, where
there was no change in the situation of the parties on the record,
and merely an unsuccessful application to change it, made by the
parties asserting the right of removal, and opposed, and
successfully opposed, by the other parties.
The mere entry of appearances in the state court, after the
filing of the remanding order, made no substantial change in the
situation, for reasons that have been indicated. And whether the
state court, at the instance of the defendants, should have
admitted the individual members of the partnership as additional
parties, or should have substituted them in place of the firm as
sole defendants, is a question of local law and practice, the
decision of which by the state court does not concern us saving so
far as it may affect the right of the defendant firm or the
individual partners thereof to have the cause heard and determined
in the federal court. If, therefore, the action of the state court
in refusing to allow the substitution is reviewable upon the
present writ of error, it is only because the application for such
substitution was made as a step towards the assertion of the right
of removal. But, from what has been said, it is sufficiently clear
that the grounds, and the only grounds, set up as the basis alike
for the motion for substitution and the second petition for removal
are the same grounds that were
Page 228 U. S. 294
alleged in the first petition for removal -- that is to say,
that John R. McLaughlin and James B. McLaughlin were the sole
members and partners of the firm of McLaughlin Brothers, and the
sole parties interested as defendants, and that they and their firm
were citizens, residents, and inhabitants of the State of Ohio,
while the plaintiffs were citizens, residents, and inhabitants of
the State of Iowa. In short, if the defendants were entitled to
have the proceedings molded in aid of their asserted right of
removal, they were entitled to have the cause removed without any
modification of the proceedings. The state court having refused to
change the character of the action, the situation was precisely the
same as when the first petition for removal was filed, and the
court properly held itself bound by the remanding order.
Therefore, if any federal right of the plaintiffs in error was
denied, it was denied by the United States circuit court, and not
by the state court.
In discussing the matter, we have assumed, in favor of the
plaintiffs in error, that the question here dealt with was raised
by them in the Supreme Court of Iowa -- a matter that is not
entirely clear, since the opinion makes no reference to the second
petition fro removal, and, aside from the opinion, the record does
not disclose what questions were raised.
We have also assumed that the second petition for removal was
filed in due season, and was not subject to certain other
objections raised against it by the defendants in error. We must
not be understood as having passed upon these questions.
Writ of error dismissed.