# McKinley v. C. & N. W. R.

> Supreme Court of Iowa · October 17, 1876 · 44 Iowa 314

URL: https://www.frixlaw.com/law-library/cases/7097041

## Case

- **Full name:** McKinley v. The C. & N. W. R. Co.
- **Court:** Supreme Court of Iowa
- **Decided:** October 17, 1876
- **Citations:** 44 Iowa 314
- **Precedential status:** Published
- **Opinion:** Dissent by Day
- **Judges:** Day, Seevers
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7097041

## Opinion text

Day, J.,
dissenting. — I do not concur' in so much of the foregoing' opinion as holds that outrage and indignity, resulting in mental suffering, constitute an element of compensatory damages. In my opinion, mental suffering arising from such cause should be considered only when the circumstances are such as to warrant exemplary damages. I have neither time nor inclination to set forth my views upon this queston; nor, as my brothers all entertain a different view, would any practical purpose be snbserved by doing so. There is a conflict of authority upon the subject. None of the cases cited in the foregoing opinion discuss the question elaborately, or sustain the view maintained, with any great cogency of reasoning. Most of them merely announce it ex cathedra, I think the better doctrine is that maintained by the Supreme Court of Nevada in Johnson v. Wells, Fargo & Co., 6 Nevada, 224, and followed by a majority of this court upon the former hearing.
SUPPLEMENTAL opinion.
Per Curiam.
6. juRisDiofe°of:causeto pendency°lat: State Court, On appeal the judgment of the court below was reversed. Within a day or two thereafter, a procedendo was issued by the clerk directing the court to proceed with the case in accordance with the opinion of this court, whereupon the defendant filed a petition and bond in the court below, in strict *324 accoi’dance with the act of Congress, passed in 1875, to remove the cause to the Circuit Court of the United States. Afterward the plaintiff filed a petition for rehearing, whereupon the defendant filed a motion to dismiss the cause.
The Code provides as follows: If a petition for rehearing be filed, the same shall suspend the decision if the court on its presentation, or one or more of the judges if in vacation shall so order, in either of whicli case such decision shall be suspended until the next term. Sec. 3201.
Such order as contemplated in the preceding section was made. The rules of this court provide, that petitions for a rehearing must be filed within sixty days after the decision is made.
At the time the procedendo was issued, and the petition and bond for the transfer to the Circuit Court of the United States was filed in the court below, and also, at the time the transcript was filed in said Circuit Court no petition for a rehearing had been filed, but such petition was filed and was pending at the time the motion to dismiss was made, and the question now is whether the proceedings aforesaid have deprived this court of power to proceed farther in the case. As we understand the act of Congress, no cause can be transferred to the Circuit Court of the United States, while the cause is pending in the courts of last resort in the several States. Inasmuch as the petition for a rehearing was - filed sixty days from the decision, we hold that the cause was still pending here, and the motion must be
Overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7097041. Public record. Not legal advice.