1. A. having in the state court recovered a judgment for $12,000
against a railroad company, the latter took the case to the Supreme
Court of Iowa, where a judgment was rendered reversing that below
and ordering a new trial. Immediately thereafter the company
obtained and filed in the office of the clerk of the lower court,
the court not being in session, a writ of
procedendo,
together with a petition under the Act of March 3, 1875, 18 Stat.
470, accompanied by the necessary bond, for the removal of the case
into the circuit court of the United States. Within the sixty days
allowed for that purpose by the laws of Iowa, but after the
procedendo and petition had been filed, A. presented an
application for a rehearing, and obtained from the supreme court an
order suspending its judgment until the next term. The company then
appeared and moved to dismiss the application on the ground that
before it was presented, the case had been removed into said
circuit court, and that consequently the supreme court had no
jurisdiction thereof. That motion being denied and a rehearing had,
A. consented to a reduction of the amount of his recovery to
$7,000, whereupon judgment therefor was entered in the supreme
court in accordance with its opinion.
Held, 1. that the
supreme court having, after reversing the judgment of the lower
court, still retained jurisdiction of the cause for the purpose of
a rehearing, the right of the defendant to a new trial had not been
perfected when the petition for removal was filed; 2. that the
subsequent judgment in the supreme court operated as a revocation
of the order to the court below to grant a new trial, and
consequently withdrew the case from under that petition.
Sed
quaere, is the filing of the petition and bond in the clerk's
office, the court not being in session, sufficient, under any
circumstances, to effect a removal?
2. The ruling in
Vannevar v.
Bryant, 21 Wall. 41 , that after one trial has been
had in a state court, the right to another must be perfected before
a demand can be made for the removal of the case to the circuit
court of the United states, reaffirmed.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
In
Insurance Company v.
Dunn, 19 Wall. 214, it was held that under the Act
of March 2, 1867, 14 Stat. 568, a cause could be removed from a
state court to the circuit court after a trial and judgment in the
state court if before the removal the first judgment had been set
aside or vacated and the right
Page 99 U. S. 148
to a new trial perfected, and in
Vannevar v.
Bryant, 21 Wall. 41, that after one trial, the
right to another must be perfected before a demand for removal
could be made.
In this case, there had been one trial and a judgment for
McKinley, the plaintiff below, against the railroad company in the
state court before the petition for removal was filed. Upon appeal
to the supreme court of the state, an order was obtained reversing
this judgment and remanding the cause for a new trial. As soon as
this order of reversal was made, the company obtained from the
clerk of the supreme court a writ of
procedendo and filed
it in the clerk's office of the court below, that court not being
at the time in session. This being done, the company filed in the
clerk's office below, the court still not being in session, a
petition under the Act of March 3, 1875, 18 Stat. 470, accompanied
by the necessary bond, for the removal of the cause to the circuit
court of the United states.
Under the practice in Iowa, a petition for rehearing may be
presented to the supreme court at any time within sixty days after
the filing of the opinion in the case, and when presented, the
court if in session, or a judge if in vacation, may order a
suspension of the decision until the next term. In this case,
before the expiration of the sixty days but after the filing of the
writ of
procedendo and the petition for removal in the
clerk's office below, a petition for rehearing was filed in the
supreme court by the plaintiff, and an order suspending the
decision until the next term obtained. At the next term, the
company appeared and moved to dismiss the petition for rehearing on
the ground that the cause had been removed to the circuit court
before the petition was filed, and the supreme court had
consequently no longer any jurisdiction. This motion was denied,
and afterwards, upon the rehearing, the plaintiff below having
consented to a reduction of the verdict in his favor from $12,000
to $7,000, a judgment was entered in the supreme court for the
reduced amount in accordance with the opinion originally filed.
We think this brings the case within the rule as laid down in
Vannevar v. Bryant. A right to a new trial had not been
perfected absolutely when the petition for removal was filed.
Page 99 U. S. 149
The supreme court still retained jurisdiction of the cause for
the purpose of a rehearing, and when it did rehear and set aside
its former order of reversal, the case occupied the same position
it would if the final judgment of that court had been the one
originally entered. The subsequent judgment operated as a
revocation of the order on the court below to proceed, and
consequently took the case out from under the petition for
removal.
We think therefore that the supreme court had jurisdiction of
the cause when its final judgment was entered, and consequently
that there is no error in the record which we can reexamine. The
view we have taken of the case makes it unnecessary to consider
whether the filing of the petition for removal in the clerk's
office, the court not being in session, was sufficient of itself to
effect a removal.
Judgment affirmed.
