Northern Pacific Company v. Holmes/Opinion of the Court

James Holmes recovered judgment in the district court of the Fourth judicial district of the territory of Washington against the Northern Pacific Railroad Company. The railroad company prosecuted an appeal therefrom to the supreme court of the territory, and the judgment was affirmed by that court on February 2, 1888. 18 Pac. 76. Thereupon, and on the same day, the supreme court of the territory, on the application of plaintiff in error, entered an order granting it leave to file a petition for rehearing on or before July 17, 1888; giving 60 days after the determination of the petition within which to perfect proceedings upon appeal in the event that the petition should be denied, and staying all proceedings and withholding a remittitur pending the filing and determination of the petition and for 60 days thereafter.

The state of Washington was admitted into the Union November 11, 1889, and on March 8, 1890, an order was entered by the supreme court of the state, reciting the affirmance of the judgment by the supreme court of the territory and the order of that court of February 2, 1888, and, further, that 'the said petition having been filed within the time provided by the order of said court, and having been pending undetermined at the time of the admission of the state of Washington, and the organization of this, the supreme court of the state, and this court having directed the defendant in error to answer said petition, the said answer having been filed within the time provided by said order, and said petition and answer having been taken under advisement by this court, now, on this 8th day of March, A. D. 1890, the court, being fully advised in the premises, denies said petition for rehearing; to which ruling and judgment, as well as the judgment of the supreme court of said territory affirming the judgment of said district court, plaintiff in error, by its counsel, excepts, and said exception is allowed.' And it was ordered 'that a writ of error to the supreme court of the United States to the judgment of the supreme court of the territory of Washington, now a record of this court, and to the judgment, order, and ruling of this court upon the petition for rehearing, be and hereby is allowed.' Supersedeas bond was given and approved, a writ of error issued, and citation signed and served.

It is well settled that if a motion or petition for rehearing is made or presented in season, and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect, for the purposes of the writ of error or appeal. Smelting Co. v. Billings, 150 U.S. 31, 36, 14 Sup. Ct. 4; Vorhees v. Manufacturing Co., 151 U.S. 135, 14 Sup. Ct. 295.

Under sections 22 and 23 of the act of congress providing for the admission of the state of Washington into the Union (25 Stat. 676, 682, 683, c. 180, printed in the margin ), this petition, which was pending in the supreme court of the territory at the time of the admission of the state, became a matter over which the state court had jurisdiction. The court took jurisdiction, and might, in its exercise, have granted a rehearing and reversed the judgment, but, upon consideration, both parties presenting their views, saw fit to refuse the rehearing, and thereby to confirm the action of the supreme court of the territory in affirming the judgment. It was then that the judgment took final effect for the purposes of the writ of error, and plaintiff in error so regarded it. But plaintiff in error could not take the writ to the supreme court of the territory, for when that court ceased to exist a petition for rehearing was pending, which, after the admission, could not be disposed of by that court, and which plaintiff in error did not deem expedient to withdraw or abandon. And if the petition and the case could have been transferred to the circuit court of the United States because plaintiff in error was a corporation created by the United States (Glaspell v. Railroad Co., 144 U.S. 211, 12 Sup. Ct. 593), that could only have been done upon request, and no request to that effect was preferred. On the contrary, plaintiff in error elected to continue the jurisdiction of the cause in the supreme court of the state, and as no federal question was involved, and the judgment could not take effect, so far as a review of it on error was concerned, until after the state court acted, and only through that action, the writ of error cannot be maintained. Moreover, the judgment of the supreme court of the territory was rendered February 2, 1888, and the writ of error was not brought until more than two years thereafter, and therefore too late, unless the time of the pendency of the petition in that court were deducted, which is quite inadmissible, in view of the fact that the petition remained pending notwithstanding the admission of the state had terminated the existence of the court in which it was originally filed. The result is that the writ of error must be dismissed.