1 F. 453 -

454

FEDERAL REPORTER.

MCCRARY, J., (orally). This is a suit on bonds issued by the county of Ralls on the tenth day of February, 1870. Plaintiff is a citizen of the state of Indiana, and brings suit upon the bonds in this court. There is a plea to the jurisdiction. No question is made as to the citizenship of the parties, nor is it claimed that there is anything to bar the jurisdiction of this court except a recent statute of the state of Missouri, which is found in section 5359 c£ the Revised Statutes of Missouri of 1879, providing as follows: "All actions whatsoever, against any county, shall be commenced in the circuit court of such county, and prosecuted to final judgment and execution therein, unless removed by change of venue to some other county, in which case the action or actions so removed shall be prosecuted to final judgment and execution in the circuit court of such other county." This is an amendment to a previous statute, which read as follows: "All actions, local or transitory, against any county, may be commenced and prosecuted to final judgment in the circuit court of the county against which the action is brought." 1 Wagner St. 408, § 4. In a case against Lincoln county, brought before this court sometime ago, there was a plea to the jurisdiction, under the original statute above quoted, which waH overruled, (7 Cent. Law J. 264,) Judge Dillon expressing the decided opinion that ,the statute did not take the case out of the jurisdiction of this court. He further said that if the statute was intended to have this effect it would, under the ruling in the case of Insurance Co. v. lvIorse, ::30 Wall. 445,be unconstitutional; and he added: "We cannot assent to the conclusion that it is within the power of the. state to create political bodies capable of contracting debts with citizens of other states, and yet privileged against being. compelled to pay those obligations by suit in the national courts." It will be seen that no stress was placed upon the fact that the language of that act was permissive, using the word "may" instead of "shall," but the ruling was put upon the ground that the jurisdiction of the federal courts cannot be interfered with by state legislation. The recent statut e, if

CUNNINGHAM V. COUNTY OF RALLS.

455

construed as regulating proceedings in the state courts, is, of course, entirely valid, and sO far as I can see it is altogether proper. But it is perfectly clear, both upon reason and authority, that it cannot be invoked for the purpose of curtailing or abridging the jurisdiction of courts of the United States. If we concede that the state, by legislation, can deprive the federal courts of jurisdiction in one case by declaring that certain parties shall be permitted to sue or be sued in the fed· eral courts, it would follow, of course, that the state might by their legislation deprive the federal courts of all jurisdiction. For, if the state can, by its own act, provide that one citizen shall not sue or be sued in a federal court, in a case coming within the constitution an0. laws of the United States, it may, in like manner, exclude all its citizens from the federal courts. In the case referred to by Judge Dillon, which was the insurance company against Morse, supra, the supreme court of the United States said: "The constitution of the United States declares that the judicial power of the United States shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and to the treaties made or which shall be made under their authority; · ... · to controversies between a state and citizens of another state, and between citizens of different states. "The jurisdiction of the federal courts, under this clause of the constitution, depends upon and is regulated by the laws of the United States. State legislation cannot confer jurisdiction upon the federal courts, nor can it limit or restrict the authority given by congress in pursuance of the constitution. This has been held many times." Railway Co. v. Whitton, 13 Wall 270-286, and other cases. It is therefore clear, both upon reason and upon authority, that we must sustain the demurrer to the plea to the jurisdiction in thil:l case, and it is so ordered.

t

.·

456 RUTHERFORD v. THE
PE:"N.

MUT.

LIFE INS.

CO.

(Circuit Gourt, E. D . .Mi88ouri.

ItEV.

l\larch 12, 1880.)

PUACTICE-8uPERSEDEAB-:MOTION FOR A NEW TRIAL-SECTION

1007, ST., CONS'l'ItUED.-A writ of error will operate as a 8upel'sedea", under section 1007 of the Rev, St" if duly served "within 60 days, Sundays exclusive," after a motion for a new trial has been overruled.

..

1. R. Taylor, for plaintiff. W. H. Clopton, for defendant. MCCRARY, J., (orally.) This case presents a question of practice of some importance, in its application to this case as well as others; but it is one upon which I have no difficulty. The question is whether the defendant here has lost its right to l:L supersl'deas on account of the delay which haB occurred since the trial of the case. The statute (Rev. St. § 1007) provides that "in any case where a writ of enol' may be a supersedeas, defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof'for the adverse party in the clerk',.; office, where the record remains, within 60 days, Sunday;; exclusive, after the rendering of the judgment complained of, and the security required by law on the issuing of the citation. ;II ;II ;II" And the question arises upon the meaning of the words "within 60 days, Sundays exclusive, after the rendering of the judgment complained at" I apprehend that the statute ought to be construed so as to commence the time from the final judgment. In this court there was a motion made for a new trial in this case, and the order of the court was made suspending the execution until the determination of that motion. The motion for a new trial was made in pursuance of the right which is given by the statute in section 726. I have no doubt of the right of any party to have a motion for a new trial heard uuder this section: "All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law." In the trial of causes it often happens that in the hurry of the trial questions arise which
   

RUTHERFORD V. PENN. MUT. LIFE IN S. 00.

457

the court is obliged to pass upon without that consideration which is desirable; and the policy of the law is always to provide ample means to a, review or reconsideration of the questions which may arise in the course of a jury trial, and to reserve to the court a right, upon a reconsideration, to set aside the judgment or modify it, if the ends of justice and seem to require it. Therefore, I think that, under the section 726, the party had a, right to ma'ke his motion for a new trial. But there is another section that has been called to my attention-section 987 of the Revised Statutes. This section still further provides for motions of this character, and it applies to the case where a party is not prepared at the time of trial so immediately file his motion. It provides for giving time within which that may be done. It says: "When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed execution may, on motion of either party, at the discretion of the court, and on such considerations for the security of the adverse party as it may judge proper, be stayed 42 days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new triaL" · · · · And then follows a provision, that "if such petition is filed within said term of 42 days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse, at his discretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be thereby rendered void." Now this is not the only section under which the party can apply for a new trial. His right to apply is independent of this section. This provides for a case where he desires to obtain from the court an extension of the usual time within which to make his application for a new trial; and in that case, where he gets such time merely to apply, he must show that he has presented his petition, and that it has 'been allowed in accordance with the provisions of the section; 'but.