Railroad Company v. Kinley

• Decision Date: 01 October 1878
• Citation: 99 U.S. 147,25 L.Ed. 272
• Parties: RAILROAD COMPANY v. McKINLEY
• Court: U.S. Supreme Court

99 U.S. 147

25 L.Ed. 272

RAILROAD COMPANY v. McKINLEY.

October Term, 1878

ERROR to the Supreme Court of the State of Iowa.

The facts are stated in the opinion of the court.

Mr. N. M. Hubbard for the plaintiff in error.

Mr. O. P. Shiras, contra.

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 to a new trial perfected, and in Vannever 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 decison 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...