Chicago, R. I. & P. R. Co. v. Stude Stude v. Chicago, R. I. & P. R. Co. Stude v. Chicago, R. I. & P. R. Co

Eighth Circuit

Chicago, R. I. & P. R. Co. v. Stude Stude v. Chicago, R. I. & P. R. Co. Stude v. Chicago, R. I. & P. R. Co

204 F.2d 954, 1953 U.S. App. LEXIS 2545

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 17, 1953

Docket10724-10726

StatusPublished

Cited by1 cases

This text of 204 F.2d 954 (Chicago, R. I. & P. R. Co. v. Stude Stude v. Chicago, R. I. & P. R. Co. Stude v. Chicago, R. I. & P. R. Co) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chicago, R. I. & P. R. Co. v. Stude Stude v. Chicago, R. I. & P. R. Co. Stude v. Chicago, R. I. & P. R. Co, 204 F.2d 954, 1953 U.S. App. LEXIS 2545 (8th Cir. 1953).

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Opinions

COLLET, Circuit Judge.

On petition for rehearing it is asserted that we should have treated the appeal from the award of the sheriff’s commission to the United States District Court, and the subsequent filing of a complaint in the United States District Court, as an original proceeding in that court and should have held that the United States District Court had jurisdiction on grounds of diversity of citizenship, as was done in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L. Ed. 1424. In our judgment there is no justification for placing that interpretation on the record. The condemnor did not file its action in the United States District Court, as was done in the Burford case. It strictly followed the Iowa procedure for initiating a condemnation suit in the Iowa state courts. The complaint that was filed in the United States District Court after the appeal was lodged there was required by the Iowa statute, and a similar complaint was filed in the Iowa District Court after the appeal to that court. The complaint filed in the United States District Court cannot be treated as having created'an original action in the federal court. It is correct, as the Rock Island contends, that the Iowa legislature could not restrict or enlarge the jurisdiction of the federal court by procedural statutes, and we must not be understood to have so held. It may well be that if this action had been commenced in the United States District Court, that court would have had jurisdiction. But actions are not initiated in the federal courts by filing with a sheriff a request that he appoint commissioners to assess damages. It might also be that if the action had been [955]*955initiated in the federal court that that court would have followed the Iowa procedure under Fed.Rules Civ.Proc. rule 71A, 28 U. S.C.A. But it was not asked to do so. And we do not pass upon that question because it, like the question of whether the action could have been initiated in the federal court, is not in the case.

The petition for rehearing must be and is denied.

Chief Judge GARDNER is of the opinion that the petition should be granted.

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COLLET, Circuit Judge.

On petition for rehearing it is asserted that we should have treated the appeal from the award of the sheriff’s commission to the United States District Court, and the subsequent filing of a complaint in the United States District Court, as an original proceeding in that court and should have held that the United States District Court had jurisdiction on grounds of diversity of citizenship, as was done in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L. Ed. 1424. In our judgment there is no justification for placing that interpretation on the record. The condemnor did not file its action in the United States District Court, as was done in the Burford case. It strictly followed the Iowa procedure for initiating a condemnation suit in the Iowa state courts. The complaint that was filed in the United States District Court after the appeal was lodged there was required by the Iowa statute, and a similar complaint was filed in the Iowa District Court after the appeal to that court. The complaint filed in the United States District Court cannot be treated as having created'an original action in the federal court. It is correct, as the Rock Island contends, that the Iowa legislature could not restrict or enlarge the jurisdiction of the federal court by procedural statutes, and we must not be understood to have so held. It may well be that if this action had been commenced in the United States District Court, that court would have had jurisdiction. But actions are not initiated in the federal courts by filing with a sheriff a request that he appoint commissioners to assess damages. It might also be that if the action had been [955]*955initiated in the federal court that that court would have followed the Iowa procedure under Fed.Rules Civ.Proc. rule 71A, 28 U. S.C.A. But it was not asked to do so. And we do not pass upon that question because it, like the question of whether the action could have been initiated in the federal court, is not in the case.

The petition for rehearing must be and is denied.

Chief Judge GARDNER is of the opinion that the petition should be granted.

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204 F.2d 954, 1953 U.S. App. LEXIS 2545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-r-i-p-r-co-v-stude-stude-v-chicago-r-i-p-r-co-ca8-1953.

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