Kellogg v. Hughes

U.S. Circuit Court for the District of Nebraska

Kellogg v. Hughes

14 F. Cas. 249, 3 Dill. 357

CourtU.S. Circuit Court for the District of Nebraska

DecidedJuly 1, 1874

StatusPublished

This text of 14 F. Cas. 249 (Kellogg v. Hughes) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kellogg v. Hughes, 14 F. Cas. 249, 3 Dill. 357 (circtdne 1874).

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Opinion

DILLON, Circuit Judge.

By the statute the application for the removal may be made to the state court "at any time before the final hearing or trial of the suit.” We are aware of the diversity of opinion between the state courts on the one hand, (Gilpin v. Critchlow [112 Mass. 339], and the cases cited ' by Mr. Chief Justice Gray), and the federal courts on the other (Akerly v. Vilas [Case No. 119]: Same Case [Id. 120]; Dart v. McKinney [Id. 3,583]; Johnson v. Monell [Id. 7.399]1, as to what is to be considered a “final hearing or trial.” within the meaning of the act of congress. In Stevenson v. Williams the supreme court of the United States (19 Wall. [86 U. S.] 572) decided that the application for the removal must be made before “final judgment in the court of original jurisdiction.” and that it was too late to make it after the cause had reached the state appellate court. As after the removal, the cause is “to proceed in the federal court in the same manner as if brought there by original process.” clearly the cause can not be ' removed after judgment, and while that judgment is in force. But, in this case, the judgment of the state court in favor of the [250]*250plaintiff, had been entirely reversed by the supreme court on error, and the court of original jurisdiction had become repossessed of the suit, with directions to proceed to a trial de novo. There is no existing judgment in the case, and it is, in all respects, in the same .posture as before the first trial was had. That tidal was adjudged a mis-trial, and in law there has been no trial of the rights of the parties. Their rights are yet to be adjudicated, and there was. to use the language of Hr. Justice Field, in Stevenson v. Williams, supra, no “final judgment" in the state court when the application for the removal was made. We are inclined to think, if the question were res nova in this circuit, that the application was in time; but it is not necessary to enter upon an examination of the subject, since the case of Johnson v. Monell. supra, is decisive, and in this court has the force of an authoritative adjudication. Following its doctrine, the motion to remand must be denied. Motion denied.

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DILLON, Circuit Judge.

By the statute the application for the removal may be made to the state court "at any time before the final hearing or trial of the suit.” We are aware of the diversity of opinion between the state courts on the one hand, (Gilpin v. Critchlow [112 Mass. 339], and the cases cited ' by Mr. Chief Justice Gray), and the federal courts on the other (Akerly v. Vilas [Case No. 119]: Same Case [Id. 120]; Dart v. McKinney [Id. 3,583]; Johnson v. Monell [Id. 7.399]1, as to what is to be considered a “final hearing or trial.” within the meaning of the act of congress. In Stevenson v. Williams the supreme court of the United States (19 Wall. [86 U. S.] 572) decided that the application for the removal must be made before “final judgment in the court of original jurisdiction.” and that it was too late to make it after the cause had reached the state appellate court. As after the removal, the cause is “to proceed in the federal court in the same manner as if brought there by original process.” clearly the cause can not be ' removed after judgment, and while that judgment is in force. But, in this case, the judgment of the state court in favor of the [250]*250plaintiff, had been entirely reversed by the supreme court on error, and the court of original jurisdiction had become repossessed of the suit, with directions to proceed to a trial de novo. There is no existing judgment in the case, and it is, in all respects, in the same .posture as before the first trial was had. That tidal was adjudged a mis-trial, and in law there has been no trial of the rights of the parties. Their rights are yet to be adjudicated, and there was. to use the language of Hr. Justice Field, in Stevenson v. Williams, supra, no “final judgment" in the state court when the application for the removal was made. We are inclined to think, if the question were res nova in this circuit, that the application was in time; but it is not necessary to enter upon an examination of the subject, since the case of Johnson v. Monell. supra, is decisive, and in this court has the force of an authoritative adjudication. Following its doctrine, the motion to remand must be denied. Motion denied.

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14 F. Cas. 249, 3 Dill. 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellogg-v-hughes-circtdne-1874.

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