Cragin v. Carmichael. The state statute contains the following provisions applicable to the present inquiry: "No sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers without notice, unless recorded," &c. (Rev. of 1860, sec. 2201.) Ancther section (2203) enacts that from the time such mortgage is duly recorded “it shall be deemed complete as to third persons, and shall have the same effect as though it had been accompanied by an actual delivery of the property mortgaged." These provisions have been frequently before the supreme court of the state, and have received a settled construction. (Hughes v. Cory, 20 Iowa, 399; Allen v. McCalla, 25 Iowa, 465.) These cases settle the law in the state of Iowa to be that an unrecorded mortgage of chattels, where the mortgagor retains possession, is valid against attaching creditors with notice of its existence at any time before levy. Accepting this construction, as I think we must as a rule of decision here, it is clear that the charge of the court below, however correct on common law principles aside from statute regulation, is not consistent with the exposition of the statute by the supreme court of she state. In this case it will be remembered that the mortgage was recorded nearly six weeks before the petition in bankruptcy was filed, and that at that time the defendants were in actual possession under their mortgage. From the time it was recorded all parties were bound to take notice of it, and from that time it became "complete as to third persons, and had the same effect as though it had been accompanied by an actual delivery of the property mortgaged." Besides, the mortgagee was in actual possession when the bankruptcy proceedings were commenced. If a sheriff, on the 19th day of November, had attached or levied upon the goods. for a creditor, he would have been bound to take notice of the mortgagee's rights, and if the mortgage was not fraud Hyde v. Phoenix Insurance Co. ulent in fact because made or used to hinder, delay, or defraud creditors, the attachment or levy would be subordinate to the mortgage. Now, as above observed, the assignee in attacking a conveyance as invalid under the laws of the state, has precisely the rights which an attaching creditor would have had, and no greater; aud as to such a creditor the mortgage would not have been invalid merely because his debt was created without notice of it, and before it was recorded. As to the assignee in bankruptcy, he must show something more to defeat a mortgage on record, when the bankruptcy proceedings were commenced, than that debts were created without notice of it before it was recorded. The judgment below is reversed, and cause remanded for a new trial. REVERSED. NOTE. The principal cases construing the statutes of the state as to chattel mortgages, and the effect of mortgagor retaining possession, are: Miller v. Bryan, 3 Iowa, 58; Crawford v. Burton, 6 Iowa, 476; McGavran v. Haupt, 9 Iowa, 83; Kuhn v. Graves, 9 Iowa, 303; Campbell v. Leonard, 11 Iowa, 489; Torbett v. Hayden (leading case), 11 Iowa, 435; Hughes v. Cory, 20 Iowa, 399; Allen v. McCalla, 25 Iowa, 464. HYDE v. PHOENIX INSURANCE COMPANY. 1. Where the defendant removed a cause to this court from the state court under section 12 of the judiciary act, but failed to have the transcript of the record of the pleadings and proceedings filed herein on the first day of the term, leave was given to the plaintiff to have the same filed and the case docketed. 2. The practice of the court in cases thus removed, stated. (Before DILLON and LOVE, JJ.) Removal of Suits from State Court.—Practice.-Filing Tran script. Hyde v. Phoenix Insurance Co. THIS suit was commenced in one of the courts of the state, and, on entering its appearance therein, the defendant made application for its removal, under section 12 of the judiciary act, to this court; and an order for the removal was accordingly made. The present is the next term of this court after the removal. The clerk of the state court has sent to the clerk of this court a certified copy of the papers and proceedings in the state court, but the same was not accompanied with any instructions or fee, and there has been no appearance here as yet by the defendant. The plaintiff now asks leave to file the transcript thus transmitted of the pleadings and proceedings in the state court, and if granted to move thereon, either to remand the cause or to default the defendant if no appearance shall be entered, or answer filed. Gatch & Wright, for the motion. No appearance for the insurance company. DILLON, Circuit Judge.-The court perceives no objection, under the circumstances, to granting leave to the plaintiff to file the transcript from the state court and to have the suit docketed. The plaintiff may, thereupon, move either to have the cause remanded to the state court or elect to treat it as pending in this court. In the latter event, as the issues were not made up before the removal, the case, under the practice (should there be an answer filed to the merits), is not triable at this term unless by consent; but the issues must be settled during the term, and if the company shall not appear and answer when required, it may be defaulted. The motion to file the transcript is sustained. LOVE, J. concurs. MOTION SUSTAINED. NOTE.-Practice in cases removed from the state court: McBratney v. Usher, 1 Dillon, 367; Rule, ib. 594. United States v. Union Pacific Railroad Co. U. S. ex rel. SAMUEL E. HALL et al. Relators, v. UNION PACIFIC RAILROAD COMPANY. 1. The judiciary act confers no jurisdiction on the circuit court to issue a writ of mandamus as an original proceeding; and the 5th section of the act of Congress of June 1, 1872, does not confer original jurisdiction in mandamus proceedings. 2. The act of June 1, 1872, does not have the effect to make the provisions of the state statutes relating to pleadings and practice in actions of mandamus applicable to the ancillary jurisdiction of this court in mandamus proceedings, but the practice of the court remains substantially as at common law. 3. The act of Congress of March 3, 1873, confers original jurisdiction on the proper circuit court of the United States of cases of mandamus to compel the Union Pacific Railroad Company to operate its road according to law. (Before DILLON and LOVE, JJ.) Mandamus.-Practice.-Effect of Act of June 1, 1872, Upon Practice in Mandamus Proceedings. A PETITION, or information, under oath, is filed in this court by Samuel E. Hall and John W. Morse, who describe themselves as citizens of the United States and of the state of Iowa, making the Union Pacific Railroad Company defendant or respondent. It sets out the acts of Congress relating to the Union Pacific Railroad, and alleges that the eastern terminus of the road is within the corporate limits of the city of Council Bluffs, in the state of Iowa, and on the eastern side of the Missouri river; that the said railroad company neglects and refuses to operate its road from its eastern terminus at Council Bluffs as one continuous line, but on the contrary, operates its road from Omaha, in Nebraska, although the railroad company owns a bridge across the Missouri river between these two cities; that the company runs and operates the portion of its road over the bridge as a distinct and independent line, under the name United States v. Union Pacific Railroad Co. of "The Omaha Bridge Transfer," thereby "causing great expense and delay to shippers and passengers, and great damage and inconvenience to the public at large, and especially to your petitioners, who are merchants doing business at Council Bluffs, and who constantly are obliged to ship and receive goods transported over said road." It is not essential to refer to the petition more at length. Its purpose sufficiently appears by the prayer, which is as follows: : "Wherefore your petitioners pray, That a writ of mandamus may issue from this honorable court directed to the said Union Pacific Railroad Company, its officers and agents, strictly enjoining and commanding them henceforth to op erate the whole of their said road, from Council Bluffs westward, and including that portion of their said road between Council Bluffs and Omaha, and constructed over and across the said bridge as one continuous line for all purposes of communication, travel, and transportation; and especially commanding them to start their regular freight and passenger trains westward bound from said Council Bluffs, to run their eastward-bound trains of both descriptions through and over said bridge, to Council Bluffs, and to run and operate said trains to and from said Council Bluffs under one uniform time schedule and freight and passenger tariff with the remainder of said road, and to wholly desist and refrain from operating said road as an independent and separate line, and from causing or requiring freight or passengers bound westward or eastward to be transferred as aforesaid at said Omaha; and otherwise commanding said defendants as to the court shall seem just and agreeable to law and required by the circumstances of the case." A notice directed to the defendant was served upon its general agent at Council Bluffs, stating that an application |