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RAILROAD COMPANY V. MCKINLEY, 99 U. S. 147 (1878)
U.S. Supreme Court
Railroad Company v. McKinley, 99 U.S. 147 (1878)
Railroad Company v. McKinley
99 U.S. 147
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.
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