Boggs v. Willard

• Decision Date: 30 September 1873
• Citation: 70 Ill. 315,22 Am.Rep. 77,1873 WL 8609
• Parties: GEORGE BOGGSv.ELISHA W. WILLARD et al.
• Court: Illinois Supreme Court

70 Ill. 315

1873 WL 8609 (Ill.)

22 Am.Rep. 77

GEORGE BOGGS

v.ELISHA W. WILLARD et al.

Supreme Court of Illinois.

September Term, 1873.

WRIT OF ERROR to the Superior Court of Cook county.

Messrs. ISHAM & LINCOLN, for the plaintiff in error.

Messrs. GOUDY & CHANDLER, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was before this court at the September term, 1870, and is reported in 56 Ill. 163. The facts relating to the claims of the parties are contained in the opinion there reported, to which reference is made. The decree of the court below was then reversed, and the cause remanded with directions to dismiss complainant's bill.

When the case was re-docketed in the Superior Court, where it had been tried, and from which the appeal had been prosecuted, complainant filed a petition, under the acts of Congress, to have the cause transferred to the Circuit Court of the United States for the Northern District of Illinois, but the court refused the motion and dismissed the bill. To reverse that decree, complainant prosecutes error. The grounds of reversal urged are, that the court below should have granted the petition, and transferred the cause, and that the bill should not have been dismissed.

Under the first assignment of errors, it is contended that the case comes within the law of Congress, as the order of dismissal had not been entered. The proceeding seems to be based on the act of the 2d of March, 1867. (Sess. Laws, p. 196.) It provides that, where a suit is pending in a State court, in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State, and the matter in dispute exceeds $500, exclusive of costs, the non-resident citizen may file the required petition, with the proper affidavit, and offer good and sufficient security for the prosecution of the suit, etc., at any time before the final hearing or trial of the suit, and have it transferred to the next term of the Circuit Court of the United States, and the State court is prohibited from proceeding further with the case. Was this suit pending, and had there been no final hearing or trial when the application was made, within the meaning of the law?

In numerous cases, it has been held, in this State, that, where a case has been tried in this court, and remanded with specific directions to dismiss the bill, or do some other act, the court below has no power to do any thing but carry out the specific directions. Chickering v. Failes, 29 Ill. 294; Winchester v. Grosvenor, 48 Ill. 515; Hollowbush v. McConnel, 12 Ill. 203. The statute (R. S. 1845, p. 420,) empowers this court to give final judgment and issue execution, or remand the cause that execution may issue, or that other proceedings may be had thereon. Had we, in the case, when it was before us, rendered a final decree dismissing the bill, no one would have claimed that the suit was pending thereafter, or that there had not been a final hearing or trial. And why? Because this court had considered the evidence as...