Department of Banking, State of Nebraska v. Pink

• Citation: 87 L.Ed. 254,63 S.Ct. 233,317 U.S. 264
• Decision Date: 14 November 1942
• Docket Number: No. 466,466
• Parties: DEPARTMENT OF BANKING, STATE OF NEBRASKA, v. PINK, Superintendent of Insurance of State of New York. On Petition for Certiorari
• Court: United States Supreme Court

317 U.S. 264

63 S.Ct. 233

87 L.Ed. 254

DEPARTMENT OF BANKING, STATE OF NEBRASKA,

v PINK, Superintendent of Insurance of State of New York.

No. 466.

On Petition for Certiorari Nov. 14, 1942.

Decided Dec. 21, 1942.

Rehearing Denied Apr. 5, 1943.

See 318 U.S. 801, 63 S.Ct. 850, 87 L.Ed. —-.

Messrs. Walter R. Johnson, of Lincoln, Neb., and Howard Saxton, of Omaha, Neb., for petitioner.

Mr. Edward F. Keenan, of New York City, for respondent.

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.

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, 28 U.S.C.A. § 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 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, 146, 23 L.Ed. 265. In reliance upon the early decision in Green v. Van Buskerk, 3 Wall. 448, 18 L.Ed. 245, 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...