105 F. 737 | 6th Cir. | 1900
This is an action of ejectment brought by Polsdorfer and wife, the defendants in error, against Ayres, the plaintiff in error, Thomas Price, and others, to recover several thousand acres of land fronting other lands owned by the plaintiffs in the suit, on the eastern shore of the Mississippi* river, in Lauderdale county, Tenn. Their right to recover the lands in question, which had been formed in the bed of the river by change.s in the current and the deposit of alluvion, was rested upon the claim that they .were accretions to the land which they owned along the shore. The parties defendant were made such under the provisions of the statute of Tennessee (Shannon’s Code, § 4972 [3231]) which provides that, if there be no actual occupant of the lands, the action is to be brought “against any person claiming an interest therein,
“It is therefore considered, ordered, and adjudged that the plaintiffs do have and recover of and from the defendants, severally, the lands herein-before described, found by the verdict of the jury to belong to them in fee, and that the plaintiffs do have and retain the possession of such lands under and in accordance with their said title, and that as to the lands herein sued for, not embraced by the verdict of the jury in favor of the plaintiffs, the defendants go hence without day, and that the plaintiffs recover of the defendants all their costs herein expended, and that execution issue therefor.”
Ayres tendered a bill of exceptions, wbicb was settled and filed, and, without taking notice of Price, who appears to have been the only other contestant for the lands recovered, sued out this writ of error. Upon the hearing, counsel for defendants in error raised the objection that Ayres alone prosecuted the writ, without having obtained any order permitting him (Ayres) to proceed alone, or taking any equivalent steps in that regard to justify himself in suing out
Counsel for plaintiff in error further urges that before the objection was brought forward the time for taking a writ of error by Price had expired, and that therefore he is as effectually precluded as if he had originally been summoned and had refused to join, and, further, that no right of the plaintiff has been delayed by his nonjoinder. This answer is plausible, but it does not reach the root of the matter, which is treated as one of jurisdiction. This must be tested by the conditions existing at the time when the writ was sued out. The action had not then been severed, and, for aught that then appeared, Price might also take out a writ. And it is clear that, if the present writ was ineffectual to remove the case, it could not be made valid by mere lapse of time and the coming on of subsequent conditions. Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409; Wilson v. Insurance Co., 12 Pet. 140, 9 L. Ed. 1032; Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58, 32 L. Ed. 437; Inglehart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. 237, 38 L. Ed. 76.
The bill of exceptions was tendered by Ayres alone. The pleadings are in the statutory form, and the judgment simply responds to them. So far as we can see, no question could arise upon the record proper; and, as Price did not procure the-settlement of a bill of exceptions in his behalf, there is perhaps some ground for saying that he was already disabled from prosecuting a writ of error, and that therefore a summons and severance would have been a futile performance. But, at the time when this writ of error was taken, Price, if he could not avail himself of the bill of exceptions- which Ayres had procured to be settled, was not, so far as we know, debarred from procuring the settling of a bill in his own behalf, and joining in the writ of error and assigning errors thereon.
Stress is also laid upon the fact that by the language of the judgment it is adjudged in terms “that the plaintiffs do have and recover of and from the defendants severally,” etc. But we think it manifest that, in substance and effect, the judgment operated against them jointly, conforming to the declaration and the verdict. In Hampton v. Rouse, 13 Wall. 187, 20 L. Ed. 593, the verdict was jointly against two defendants, but the judgment was in form against the One who brought the case up. The reporter states that the court held this a mere clerical error. The writ of error was dismissed for the nonjoinder of the other defendant.
It is a matter for regret that this defect was not brought to the attention of the court before the expiration of the time allowed by law for suing out the writ after the entry of the judgment. In these circumstances, seeing that the right to a new writ, is now barred, we should have been willing, if possible, to find some ground on which to support the jurisdiction. But the objection is one which may be raised at any time before judgment is entered, and, indeed, is one of which the court may take notice sua sponte. The writ- of error must be-dismissed. ........... ...