Irvine v. Marshall ( 1859 )

By the Cowrt

— Atwater, J.

— The above entitled, cause comes to this Court from the Supreme Court of the United States, in accordance with the following order made in said Court, viz:

“And it is further ordered that this cause be and the same is hereby remanded to the Supreme Court of the State of Minnesota, with instructions that it be remitted to the District Court with permission to the Defendant to answer over to the complaint,” &c.

A motion is now made on the part of the Plaintiff to have the record certified to the United States District Court. The Defendants contend that the cause should be sent to the District Court of the State.

From the language of the order it would seem that it was the intention of the Supreme Court that the cause should be sent to the same Court whence it originated. To remit a cause, is to send it bach to the same Court from which it had been removed by appeal or otherwise, for the purpose of retrying the cause when judgment has been reversed, or of issuing execution .when it has been affirmed. Bouv. Law Dic., page 442; Burrill's Law Dic., page 882; Jacob's Law Dic., vol. 5, page 467. The District Court of the Territory of Minnesota, was both a Territorial and United States Court. Causes and proceedings in the former were conducted according to the statutes of the Territory, and those brought on the Federal side of the Court, (as it was termed,) were [conducted under the laws of the United States. From an examination of the files and proceedings in this cause it would appear -that it was commenced and prosecuted in the Territorial Court, or on the Territorial and not the Federal side of the Court. The Constitution provides, (Bee. 4 of schedule,) that “all actions at law and suits in equity which may be pending in any of the Courts of the Territory of Minnesota at the time of a change from a Territorial to a State government, may be continued and transferred to any Court of the State which shall have jurisdiction of the subject matter thereof.” The District Courts of the State therefore take the place and receive the causes of the District Courts of the late Territory, and as this was one of those causes we can arrive at no other conclusion than that the mandate of the Supreme Court, requires it to be remitted to the District Court of the State. We find nothing in the opinion of the Court in this cause,' which conflicts with this view. The cause must be remitted to the District Court of Ramsey County, the Defendants to have twenty days after service of a copy of the order to be entered on this decision on them to answer the complaint in this cause.