90 F. 690 | 3rd Cir. | 1898
In January, 1877, James Bryar was declared a bankrupt; and soon thereafter certain land to which he had title was offered for sale by his assignee. His wife, Jane Bryar, thereupon petitioned the district court for an order to restrain the sale, averring that the property was hers; the deed for the same having been made to her husband by mistake. While the application was pending the assignee sold the land to Campbell. Subsequently (dune 29, 187.8) Campbell was brought in as a defendant; and later (June, 1879) the petition was amended by inserting a prayer for conveyance of the land by Campbell to the petitioner. Thus the proceeding became substantially a suit between Mrs. Bryar and Campbell, for the property in controversy. Subsequently the court adjudged it to her, and decreed that Campbell convey accordingly. July 16, 1879, the latter appealed to the circuit court. While the appeal was pending the land was sold under a mortgage executed by James Bryar October 2, 1874, and purchased by William Rogers, who conveyed to Campbell. In 1880 Mrs. Bryar brought an action of ejectment against: Campbell; and on the tria a verdict was rendered against her, and judgment: entered accordingly. January 28, 1898, the plaintiff moved the court to dismiss the appeal (for imperfection) which motion the court refused. With these; facts appearing on the record the appeal came to hearing in 1897, and the bill was dismissed. 78 Fed. 657. The refusal to strike off the appeal, and the dismissal of the bill, constitute the errors assigned.
The case is extraordinary; but in any view that can be taken of it, the action of the circuit court (in both respects complained of) must be affirmed. Granting that the district: court had jurisdiction to enter the decree (which may well be doubted, to say the least) and that the circuit court had authority to do more; than reverse, and dismiss the bill, for want of such jurisdiction, its refusal of the motion, and dismissal of the bill on tin; merits, must: be affirmed; because, first, the suit at law must be treated as an abandonment of the proceeding in equity, and second (if not) the verdict of the jury must be regarded as a conclusive finding of the facts, on which the plaintiff’s case rests, against her.
The decree is therefore affirmed.