McKee v. Rains , 19 L. Ed. 860 ( 1870 )

77 U.S. 22 (1869) 10 Wall. 22

McKEE
v.
RAINS.

Supreme Court of United States.

Mr. Durant, for the plaintiffs in error.

Mr. P. Phillips, contra.

The CHIEF JUSTICE delivered the opinion of the court.

We perceive no error in the order of the Circuit Court remanding the suit to the State court. The case made by the pleadings was clearly within the jurisdiction of the State court where the suit was brought;^[†] and the parties being all citizens of the same State, was not within the original jurisdiction of any National court.

Nor was the case one which could at any stage be removed into the Circuit Court of the United States under the act of Congress of March 3d, 1863, or April 9th, 1866.

It is very plain that the first of these acts does not apply to the case before us. It was not a suit or prosecution described by the act. No act of Congress has been cited from which authority can be derived to the marshal of any court of the United States to seize the goods of one person for the satisfaction of the debts of another.^[‡] Nor was the suit brought during the rebellion; for the rebellion must be regarded as having closed, in all cases where private rights are affected by the time of its termination, on the 2d of August, 1866.^[†]

And if neither of these points were decisive, the fatal objection to the attempted removal would remain; that no application was made until after verdict; and the Constitution provides^[¶] that "no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." All these propositions have been so recently determined by this court that nothing more is now necessary than to state them as settled.

Nor does it seem necessary to consider the right to remove this case claimed under the act of April 9th, 1866. The counsel for the plaintiffs did not insist upon it in argument; and it is evident, upon looking into the act, that the suits, for the removal of which it provides, are such as have arisen or may arise under that act; and it is quite clear that the suit before us is not of that description.

The order of the Circuit Court remanding the case to the State court must, therefore, be

AFFIRMED.

The counsel for the defendant in error asks, under the twenty-third rule, that the order may be affirmed with damages at the rate of ten per cent. per annum on the amount of the judgment in the State court. If, upon the application for removal, the decisions of this court recently made had been announced, there might be ground for argument that the writ of error was sued out merely for delay. But it must be remembered that at the time of suing out the writ of error in this case, all the questions settled by those decisions were seriously controverted.

We cannot say, therefore, that the writ was not prosecuted in good faith, and in the expectation of obtaining a reversal of the order. The motion for affirmance with ten per cent. damages must be

DENIED.

NOTES

[†] Buck v. Colbath, 3 Id. 340-1.

[‡] Bigelow v. Forrest, 9 Id. 339.

[†] United States v. Anderson, Ib. 56.

[¶] Justices v. Murray, 9 Wallace, 274.