1. After a final judgment by the New York Court of Appeals,
entered in the lower court upon remittitur, an amendment merely
certifying that a federal question was presented and decided does
not extend the time -- three months from the rendition of the
judgment of the higher court -- within which petition for
certiorari can be filed in this Court. P.
317 U. S.
266.
2. Although a writ of certiorari to review a judgment of the
highest court of a State may properly run to a lower court where
the record is physically lodged, and where, under New York
practice, a judgment is entered upon the remittitur of the Court of
Appeals, it is nevertheless immaterial whether the record is
physically lodged in the one court or the other, since this Court
has ample power to obtain it from either. P.
317 U. S.
267.
3. The time within which application to review a final judgment
of the New York Court of Appeals may be made to this Court runs
from the date of the rendition of the judgment in that court, and
not from the date when, under the local practice, judgment was
entered on remittitur in the lower state court. P.
317 U. S.
267.
4. A judgment or order of the Court of Appeals of New York is
final for purposes of review by this Court when the record reveals
that it leaves nothing to be done by the lower court except the
ministerial act of entering judgment on the remittitur. P.
317 U. S.
267.
Page 317 U. S. 265
5. The test of the finality prerequisite to a review in this
Court is not whether, under local rules of practice, the judgment
is denominated final, but is whether the record shows that the
order of the appellate court has in fact fully adjudicated rights,
and that that adjudication is not subject to further review by a
state court. P.
317 U. S.
268.
6. Where the judgment is final in this sense, the time for
applying to this Court runs from the date of the judgment. P.
317 U. S.
268.
Petition denied.
Petition for certiorari to review a judgment entered in the
Supreme Court of New York as directed by remittitur from the Court
of Appeals of the State. For report below,
see 288 N.Y.
712, 43 N.E.2d 93; 289 N.Y. 624, 43 N.E.2d 840; 289 N.Y. 841, 47
N.E.2d 441.
PER CURIAM.
This case is here on a petition for certiorari to the Supreme
Court of New York. It appears from the record that a judgment of
that court was affirmed by an order of the Appellate Division, 263
App.Div. 937, 33 N.Y.S.2d 109, which was on June 18, 1942 ordered
affirmed by the Court of Appeals, 288 N.Y. 712, 43 N.E.2d 93, whose
remittitur to the Supreme Court was issued the same day. On June
25, the order and judgment of the Court of Appeals were made the
order and judgment of the Supreme Court.
Page 317 U. S. 266
A motion was afterwards filed in the Court of Appeals to amend
its remittitur by adding to it the statement that a federal
question, on which the petition for certiorari relies, was
presented and necessarily passed upon in that court. So far as
appears, the motion did not seek a reargument or rehearing of any
part of the case; it was no more than a request that the Court of
Appeals declare what had in fact occurred upon its previous
decision of the case. On July 29, the Court of Appeals granted the
motion and amended its remittitur accordingly. 289 N.Y. 624, 43
N.E.2d 840. On September 16, the Supreme Court directed that the
order amending the remittitur be made the order of the Supreme
Court. The petition for certiorari was filed in this Court on
October 20.
Under the three-months limitation imposed by the statute, 28
U.S.C. § 350, the petition for certiorari is timely only if the
amendment of the remittitur extended the time within which to apply
for certiorari. We are unable to conclude that it had such effect.
Unlike a motion for reargument or rehearing, it did not seek to
have the Court of Appeals reconsider any question decided in the
case. The final judgment already rendered was not challenged; what
was sought was merely the court's certification that a federal
question had been presented to it for decision, and this could have
no different effect on the finality of the judgment than a like
amendment of the court's opinion.
A timely petition for rehearing tolls the running of the
three-months period because it operates to suspend the finality of
the state court's judgment, pending the court's further
determination whether the judgment should be modified so as to
alter its adjudication of the rights of the parties. Here, no such
alteration of the rights adjudicated was asked, and the finality of
the court's first order was never suspended. Accordingly, we must
deny the petition
Page 317 U. S. 267
for certiorari on the ground that it was not filed within the
time provided by law.
Certain questions with respect to the timeliness of applications
for review of state court judgments, which are now pending before
us in petitions for rehearing in two cases, have recurred so
frequently that we think it appropriate to add a word for the
guidance of the Bar. It is true that our writ to review a judgment
of the highest court of a state may properly run to a lower court
where the record is physically lodged, and where, under New York
practice, a judgment is entered upon the remittitur of the Court of
Appeals. It is nevertheless immaterial whether the record is
physically lodged in the one court or the other, since we have
ample power to obtain it from either.
Atherton v. Fowler,
91 U. S. 143,
91 U. S. 146.
In reliance upon the early decision in
Green v.
Van Buskerk, 3 Wall. 448, the period for appeal or
application for certiorari has on occasion been computed not from
the judgment or order of the New York Court of Appeals, but from
the judgment subsequently entered by the lower court upon the Court
of Appeals' remittitur. This practice, which is a departure from
the rule applied to cases from other states, is inconsistent with
our many decisions on the nature of a final judgment under § 237 of
the Judicial Code, 28 U.S.C. § 344, and cannot be sanctioned.
See especially Chief Justice Waite's opinion in
Mower
v. Fletcher, 114 U. S. 127,
where a state appellate court's judgment was held to be final and
reviewable when it ended the litigation by fully determining the
rights of the parties, so that nothing remained to be done by the
lower court except the ministerial act of entering the judgment
which the appellate court had directed.
See also Wurts v.
Hoagland, 105 U. S. 701,
105 U. S. 702,
and
Clark v. Williard, 292 U. S. 112,
292 U. S.
117-118. This rule applies with equal force to cases
from New York,
Page 317 U. S. 268
in which the judgment or order of the Court of Appeals is
reviewable here as a final judgment when the record reveals that it
leaves nothing to be done by the lower court except the ministerial
act of entering judgment on the remittitur. Such an order is,
within the meaning of § 237 of the Judicial Code, a final judgment
reviewable here.
For the purpose of the finality which is prerequisite to a
review in this Court, the test is not whether, under local rules of
practice, the judgment is denominated final (
Wick v. Superior
Court, 278 U.S. 575;
Cheltenham & Abbington Sewerage
Co. v. Pennsylvania Public Utility Comm'n, post, p. 588), but
rather whether the record shows that the order of the appellate
court has in fact fully adjudicated rights, and that the
adjudication is not subject to further review by a state court.
See Gorman v. Washington University, 316 U. S.
98. Where the order or judgment is final in this sense,
the time for applying to this Court runs from the date of the
appellate court's order, since the object of the statute is to
limit the applicant's time to three months from the date when the
finality of the judgment for purposes of review is established.
It was for this reason that we recently held that the
three-months requirement had not been complied with in
Monks v.
Lee, post, p. 590, and
Bunn v. City of Atlanta, post,
p. 666, in which cases judgments were brought here for review from
the courts of California and Georgia, and in each of which a
petition for rehearing is today denied. The petition for certiorari
in this case must likewise be denied for want of jurisdiction.
So ordered.
