Sunberg v. District Court of Linn Co.

. Beck, J. — I. The petition alleges that plaintiffs commenced an action in the district court of Linn county against B. E. Seaton, sheriff, to recover the possession of a stock of goods wrongfully seized upon an attachment issued against P. and N. Ohlquist, in an action brought by certain of their creditors; that J ohn Y. Earwell & Co., citizens of the state of Illinois, appeared in the case and, uj>on their motion, were substituted as defendants in the action, and the sheriff, Seaton, was discharged from all liability to any of the parties in the action; subsequently, upon the application of John Y. Earwell & Co., the cause was transferred to the U. S. circuit court, and that, upon the motion of plaintiff, that court entered an order remanding the cause to the district court of Linn county, but the operation of the order was suspended until this or a like case should be determined in this court. The petition alleges that, after the order transferring the cause to the U. S. court, nothing remained in the state court from which an appeal could have been taken, and that plaintiffs have no remedy other than by certiorari. The plaintiffs ask in their petition that the order of the district court, substituting Earwell & Co. as defendants, and releasing Seaton, and transferring the cause to the U. S. court, may be set aside as having been made without authority. As grounds of demurrer, among others, it is shown by the allegations of the petition that plaintiffs had a plain, speedy, and adequate remedy by appeal, and that the orders of the district court complained of are within the limit of its juris [599] diction. The other grounds • of demurrer need not be here stated, and it becomes necessary to consider only those mentioned, as the points made are decisive of the case. , , * court^repietion of de-ta' íransfer "to federal court. II. In our opinion the plaintiffs could have prosecuted an appeal, wherein the decision of the district court, disehargine the original defendant and substituting other parties in his place, could have been reviewed, The order affects substantial rights of the plaintiffs, and prevented a judgment against the ¿efen¿¡ail^ which is the relief sought by plaintiffs in the action. Under the statute, an appeal may be prosecuted from this order, unless the right of appeal be defeated by the order transferring the cause to the U. S. court. See, Code, § 3164. We think the transfer of the case cannot defeat the right of appeal. If it should be so held, parties would be deprived of remedies secured by law, and the jurisdiction of this court to review decisions of the state court and correct errors therein would be abridged. The statute authorizing the transfer ought not to be so construed as to have this effect. The transfer should be delayed until an appeal taken is disposed of, or, if taken after the transfer, the cause should be delayed in the U. S. court until the appeal in the state court is determined. A practice has been adopted by the U. S. circuit court of the seventh district in accord with the course last suggested. Williams Mower & R. Co. v. Raynor, 7 Bissell, 245. same. III. We will not determine the question whether an appeal will lie from the order transferring the case to. the U. S. court. It is of great moment, and is not discussed by counsel. Questions of this character should not be decided except upon argument. It is plain that if no appeal lies by reason of the transfer to the U. S. court, wrhereby the state courts, both district and supreme, are deprived of jurisdiction of the cause, certiorari cannot be prosecuted. If the cause has wholly passed [600] into the jurisdiction of the U. S. court, and does not remain in the district court, we can have no jurisdiction to review the judgment; for there is no case pending there. We are sure that an appeal will lie to the court from the order discharging the original defendant and substituting other parties. Upon this appeal from that order the controlling question in the case could have been decided. We are informed by plaintiffs’ petition that the cause is suspended in the U. S. court, awaiting the decision of this court in the case, and another on appeal, involving the validity and regularity of the order of the court substituting new defendants in the case. It Avill be discovered that the decision of the case before us is, therefore, of but little practical importance in settling the rights of the jiarties. 2. certiobawill not lie. IY. Certiorari will not lie Avhen there is a remedy by appeal, or when the party fails to appeal within the time prescribed by laiv. Fagg v. Parker, 11 Iowa, 18; Ind. School Dist. of Asbury v. The Dist. Court of Dubuque Co., 48 Iowa, 182. The plaintiffs, having failed to prosecute an appeal, cannot now seek relief by certiorari. Y. The order in the district court transferring the cause to the U. S. court was within its jurisdiction. While the order may have been erroneously made, it cannot be claimed that the court exceeded its jurisdiction. The petition does not show that the court acted illegally, that is, that its proceedings Avere not in accord with law, in transferring the case. The real ground of complaint is that the court erred in substituting neAv defendants in the action. If they had been regularly and lawfully substituted, there Avould have been no irregularity or error in transferring the case. The order to' that effect cannot, therefore, be reviewed upon certiorari, for the court in making it did not ‘‘exceed its proper jurisdiction, or otherwise act illegally.” Code, § 3216. The demurrer to plaintiffs’ petition is sustained, and the cause is Dismissed.