MILLIGAN V. LALANCE & GROSJEAN MANUF'a CO.
165
MILLIGAN
v.
LALANCE
&
GnOSJEAN }.fA-NUF'G CO. ,
{Circuit Court, S. D. New York. OF CAUSE-PENDING ANCE ON ArrE,\L.
July 17,1883., OF ORDER OF AFFIRM-
On the removal of a eanse from a state court to the circuit, this court may dispose of a motion pending before a general term of the s:ate court, at the time of rcmoval, for a resettlement of (he form of an order on affirmance, and insert sueh reasonahle provisions in lhe order of atlirmallee as would have IJecn compctent and propcr fur the gencral tcrm to havc done tinct not the causc [,eell removcd.
Motion for Resettlement of Order for Inspection of DoORs. Rouer/soils, Harmon tt Cuppia, for plaintiff.
FEDERAL
.'
.. ,;;
term, and before the adjourned day the cause was properly temoved to this court. When a caSQ is removed here from a state court, all prior orders stand as adjudications in the cause. This court does not sit as an appellate court upon such orders, ami no further hearings can be had on· such matters except as the ordinary practice of this court may warrant. Duncanv. Gegan, 101 U. S. 810; Fisk v. Union Pac.B. Co. 6 Blatchf. Brooks v. Farwell, 4FED. REP. 166; Harrison, etc 0' v. Wheeler, 11 FED. REP. 206; Wert/win v. Cont. fly. J; T. Co. Id. GS9. The merits of the original applieation, therefore, cannot be here reviewed; and if this motion were in the nature of an appeal, or even of a motion for rehearing or reargument, as the plaintiff contends, it must have been denied. But it cannot be so considered. At the time the cause was removed a motion for a modification of the order had been entertained by the general term, and was then pending and unheard. That application must be disposed of by this court. It is brought before it by means of this motion, and in disposing of it this court must necessarily act as the general term, and may and shoald make any proper order consistent with the prior general term de·' cision, which, upon that motion, it was competent for the general term to make. That motion, as I view it, was in effect only a motion for' a, resettlement of the form of the order of affirmance; not for a rear-' gament of the appeal, or of any question presented upon the appeal. The appeal was from the whole order, on the ground that no case for such an order was made in the petition. In settling, or in resettling,' the form of the order of affirmance, it was competent for the general term to insert any reasonable provisions having reference to the circumstances of the case. If this court should not entertain and dispose of pending motions when a cause was removed, such as for the resettlement of the forms of orders, great injustice might at times arise, and an open door be presented for great abuses, through the sudden removal of causes at a p:ll'ticular juncture. The form of order now asked for is that made at special term, with a slight modification, to which there can be no reasonable objection, or the deliv· ery of sworn copies, as the rule itself allows. The motion should, therefore, be grclllted.
AUSTIN and others v. RUTLAXD R. Co. and otbers. (CirCUit Court, D. Vermont. June 19,1883.) CmCT'TT COunT-JURI8DTCTIOX-PAUTITIOX TN EQUITY-CITIZE:\,SITIP-PnoPERTY TAKEX ny