Duncan v. Gegan

delivered the opinion of the court.

The transfer of the suit from the State court to the Circuit Court did not vacate what had been done in the State court previous to the removal. The Circuit Court, when a transfer is effected, takes fhe case in the condition it was when the State court was deprived of its jurisdiction. The Circuit Court has no more power over what was done before the removal than the State court would have had if the suit had remained there. It takes the case up where the State court left it off.

Before the suit of Gegan v. Bowman and Duncan was *813 removed to the Circuit Court, the rank of the appellant’s mort-' gage bad been finally settled by the judgment of the Supreme Court of the State on appeal. That was no longer an open question between the parties to that litigation.. All the court from which the removal was afterwards made could.do was to distribute the proceeds of the sale of the property in accord-' anee with the directions of the Supreme Court. It had no power whatever to change the order of priorities as settled by the appellate court.

The question of the right to make the transfer is not before us. Duncan, who caused the removal to be made, is the only party who complains of the decree below, and he cannot object here to what has been done below by his own prqcurement. We confess it is not easy to see how a party could swear to his belief, that from prejudice or local influence he could not obtain justice, in the State court, when all that court had to do was to divide the proceeds of a sale by paying them out in a certain way, and as to which there was apparently no possible chance of dispute. But still it was so sworn, and the Circuit Court took jurisdiction against the motion of the opposite party. Of that no complaint is now made by the appellees.

It follows, then, that, whether the proceedings which were afterwards had in the Circuit Court at the instance of the appellant were part of the original suit removed from the State court, or a new and distinct suit begun in the Circuit Court by the appellant himself after the removal, the judgment of the Supreme Court of the State on the appeal in the original suit concludes him- as to his rights thus litigated and disposed of. As it is apparent that the questions presented by the new pleadings in' the Circuit Court are in all respects the same as those settled by the Supreme Court of the State, it follows that the Circuit Court was right in holding that the appellant was " concluded by that decree.

Affirmed.