15 F. Cas. 132 | U.S. Circuit Court for the District of Kentucky | 1831
OPINION OP
In 1798 a judgment was obtained in favor of Pickett for a certain tract of land, but no writ of •possession was issued on the judgment The demise -in the declaration was laid at ten years, and expired in 1808. Twenty-two years after this, a notice was served by the attorney for the devisees of Pickett on William Mitchell, that the court would be moved to amend the demise by inserting a new one; and at the ensuing May term, 1830, the demise was amended, on motion, by extending it to fifty years. Mitchell on whom the notice was served had no interest in the premises, and they had passed to the present occupants by sundry conveyances, none of whom hold as the heirs of Pickett After the extension of the demise a writ of possession was taken out, and the terre tenants were about to be turned out of possession, without notice. To arrest this proceeding and reverse the order to amend the demise, this writ of error was brought. This writ which' is issued by a court to reverse its own judgment, is called in England a writ of error coram nobis, and such is its title as used in the state courts of this state; but when used in the circuit courts of the United States, it may properly be denominated a writ of error coram vobis; as the writ is issued in the name of the president of the United States, and is tested in the name of the chief justice. The writ has grown out of use in England, and is seldom issued in the piactice of the state courts. In this state, however, its use is still continued. and for the purposes of the present case, may be considered as bringing the question of the amendment of the demise before the court. Indeed it is a matter of no importance whether this proceeding be considered, technically on a writ of error or on motion. The latter would conform more to the modern practice, and would seem to be a less objectionable mode than by a writ of error, where the object is not to reverse a formal judgment, but an order of the court. This extension of the demise was permitted without opposition, and as a matter of course under the practice which has been observed in this court since the opinion of the supreme court in the case of Walden v. Craig, 9 Wheat. [22 U. S.] 576. In that case the demise was laid at ten years from August, 1789; in 1800 judgment was rendered for the plaintiff in the ejectment, and a writ of possession was awarded. Injunctions were obtained from time to time until April, 1813. At November term, 1821, Walden moved the court to extend the demise, on which motion the judges were divided and the mótion consequently failed. A writ of error was prosecuted to reverse this decision. In their opinion, the supreme court say: “There is peculiar reason for the amendment in this case, where the cause has been protracted and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. The cases cited by the plaintiff’s counsel in argument are, we think, full of authority for the amendment which was asked in the circuit court, and we think the motion ought to have prevailed.” Cro. Jac. 440; 1 Salk. 47; 2 Strange, 307; 2 Burrrows, 1159 [U. S. v. The Peggy] 1 Cranch [5 U. S.] 110. But the court dismissed the writ of error, on the ground that it would not lie to a decision of a motion tó amend, which was a matter within the discretion of the circuit court
In pursuance of the practice of this court, sanctioned by the supreme court,. there can be no doubt of the power to extend the demise, but it is very clear, that such a power should not be exercised, except on notice to all persons whose interests may be affected by the amendment. The present case is a strong one to* illustrate the propriety and indeed necessity of notice. It is probable that some of the persons in possession, may plead the statute of limitations; and others, perhaps, claim under different, if not paramount titles to that of the plaintiff in the ejectment. Indeed it is manifest from the facts in this case, that great injustice will be done, unless this writ of possession shall be set aside. It may be difficult to fix the limit within which the demise may be extended, but it is clear that in this summary way the rights of no individual should be prejudiced, without notice, and an ample-opportunity given of showing cause why the amendment should not be granted. And as the amendment complained of was inadvertently granted, without notice, it is reversed and the writ of possession set aside.