Akerly vs. Vilas. AKERLY vs. VILAS. CIRCUIT COURT-WESTERN DISTRICT OF WISCONSIN-SEPTEMBER 1872. IN EQUITY. CASES REMOVED FROM STATE COURTS. 1. TRIED UPON ORIGINAL PLEADINGS.-An action removed after issue joined, from the state to the Federal courts, under the act of July 27, 1866, as amended by the act of March 2, 1867, must be tried in the Federal courts upon the pleadings certified from the state courts, and the same force and effect must be given to them by the Federal courts as in the state courts if the case had remained there. 2. ALL RIGHTS AND DEFENSES PRESERVED.-In such a case the cause stands in the Federal courts as it stood in the courts of the state, the former clothed with the powers of the state courts, and all rights acquired by, and all defenses allowed under the state laws are to be recognized in this court. 3. Congress did not intend by these statutes to allow either party to obtain a practice or ruling more favorable to them, or when dissatisfied in the state court to obtain a trial de novo. 4. INTERLOCUTORY ORDERS MAY BE REVISED.-The decision of a court upon a motion does not partake of the quality of a judgment in such a sense as to preclude the same court from a further examination of the same question. The proceedings before judgment are within its control, and orders made may be revised, and vacated or set aside. 5. ESTOPPEL.-The doctrine of estoppel does not go so far as to preclude a further inquiry and a rehearing of a motion upon an enlarged state of facts, nor prevent this court from revising an order made in the case while pending in the United States Circuit Court for the district from which it had been removed. 6. The doctrine of res adjudicata considered. This was an action commenced in the circuit court of Dane county, in the state of Wisconsin, in 1860, to foreclose a mortgage given by the defendant to plaintiff and one Mrs. Lord, she having assigned her interest to plaintiff. The Akerly vs. Vilas. defendant answered, setting up various defenses and counter claims, among others an alleged breach of covenant by the plaintiff, for which he claimed damages in the sum of $100,000, stating that the mortgage was given to secure a part of the purchase price of certain real estate conveyed by plaintiff to defendant by deed, containing covenants of quiet enjoyment and general warranty, and averring a breach thereof by the plaintiff. The circuit court struck out the counter-claim, but on appeal the supreme court of the state held it well pleaded under the state practice, and remanded the case for further proceedings. After such decision, and after the testimony had been taken upon the issues made up in the state court, the plaintiff procured a removal of the case to the United States Circuit Court for the district of Wisconsin, under the act of March 2, 1867. For opinion on this removal consult Volume 2 of this Series, p. 110. The plaintiff, by reason of an order of the state circuit Judge, prohibiting the clerk from furnishing copies of the pleadings and proceedings in the case in that court, was unable to obtain certified copies of the record, etc., from the state court, but the United States court allowed sworn copies to be filed in lieu thereof, and thereupon entered and docketed the case. The plaintiff then filed a new bill and the court entered an order or rule that defendant plead or demur thereto. Defendant moved to strike it from the files, which motion was denied. The defendant then answered on the merits and plaintiff' excepted. Before the exceptions were passed upon, the defendant obtained an order, under the 6th section of the act dividing Wisconsin into two districts, transferring the case from the eastern to this district. After the transcript of the record of the eastern district was filed in this court, the defendant moved for an order that plaintiff procure and file certified copies of the process, plead ings, etc., from the state court, which motion was granted, and such copies were procured and filed. Akerly vs. Vilas. The defendant then moved for an order striking out all the pleadings filed in the federal court, and directing the action to be tried on the pleadings and issues made up in the state court. The plaintiff, at the same time, moved that his exceptions to the defendant's answer (which contained the same matters of defense and counter claims as the answer filed in the state court) be allowed. The case is reported, in its various phases, in 15 Wisconsin, 401; 21 do., 88 and 377; 23 do., 207; 25 do., Appendix A. Finches, Lynde & Miller, for complainant. Wm. F. Vilas & P. F. Spooner, for defendants. HOPKINS, J.: This case, as presented by the motions of the respective parties, involves but two questions requiring consideration at this time. First-Does the act of July 27, 1866, (2 Brightly, 115,)1 as amended by act of March 2, 1867, (Brightly, 116,) providing for the removal of certain cases from the state to the federal courts for trial, authorize or allow the parties to file new pleadings in the federal courts, or to change the issue made up in the state courts before removal? Second-If not, is this court estopped by the orders made while in the circuit court of the United States, before the removal of the cause to this district, one, requiring the defendant to answer the new bill filed in that court, and the other. denying a motion made by the defendant to strike such bill from the files? Another important question might arise, if the court should reach that point, viz.: Whether the decision on those motions involved or settled the kind of answer, or the matter of the answer, the defendant might put in. It seems to me, if it should be necessary to consider this, 114 U. S. Statutes at Large, 306. 14 U. S. Statutes at Large, 558. Akerly vs. Vilas. that the alleged estoppel might be found not to extend to or embrace the questions presented on this motion. The defendant answered, setting up the history of the case in the state courts, and the same defenses that he set up in the state court, upon which the various proceedings recited therein had been had. The complainant filed exceptions to that answer, which present the question, for the first time, it seems, to me, as to the kind of defense and answer the defendant might interpose in this court; or, in other words, whether the case should be tried upon the issues made up in the state court, or whether it should be considered as commenced de novo, and new pleadings be filed containing only such matters of defense as are permissible under the practice and pleadings of this court in cases originally commenced herein. This is the important question and it requires careful consideration. The practice, where a case was removed to the federal court, under the judiciary act of 1789, (1 Brightly, 128,)1 in states where the statutes had changed the common law forms, was to file new pleadings. That act, however, only required the party removing to file copies of the process. Section 12. And, as under that, the application had to be made on the defendant's entering his appearance, it was before he had plead, or taken any steps in the case. So the courts had to treat it as a case just commenced in the federal courts, and apply to it the practice existing there. The act under which this case was removed is essentially different from that in many respects, and requires a very different practice. The act under which this case was removed authorizes the application to be made after issue joined, and requires the party petitioning for removal to give bail to enter in the federal court copies of all process, pleadings, depositions, testimony, and other proceedings in said suit. The act to which 11 U. S. Statutes at Large, 79. Akerly vs. Vilas. this is amendatory declares that "all pleadings filed or entered as aforesaid in the United States court by the defendant applying for the removal of the cause, shall have the same force and effect in every respect and for every purpose as the original pleadings would have had by the laws and practice of the courts of such state if the cause had remained in the state court." In that act, as in the amendment to it, the following provision is contained: "And said copies being so entered as aforesaid, in such court of the United States, the cause shall then proceed in the same manner as if it had been brought there by original process." This, the plaintiff's counsel claims, makes it necessary to treat the case as just commenced in this court by the service of process, and to take the usual proceedings as from that point. I cannot concur in that view. Full effect is given to that provision by holding it to mean that the jurisdiction of the court over the parties and the subject matter is as complete when brought in in that way, as when obtained by the service of original process. The same phrase or sentence is in the original act of 1789, and in the act of 1866, and Congress could not have intended it should receive any such construction, for then it would conflict with the provision in the last act declaring what were the force and effect of the pleadings filed in the state courts. The act of 1867 being an amendment of the act of 1866, according to the rule for the construction of amendments to statutes, is to be read as if incorporated into the original act, which would make the clause in that act prescribing the effect to be given to the pleadings in the state courts applicable alike to cases of removal under the amended act. Thus construed, they mean that all proceedings necessary after the removal to a final trial or hearing shall be conducted in the same manner, and the case, as to such proceedings, shall be regarded as if originally commenced in this court. In the language of the statute, "the state courts shall proceed no further therein, and the suit shall thereafter proceed in the federal courts." If it were not so, and the proceedings were |