Ayres v. Polsdorfer

Ejectment and trespass brought in the circuit court of the United States, western division of the western district of Tennessee, for the recovery of lands and damages. Part of the land is an island in the Mississippi river. The declaration was in the usual form, and the ground of jurisdiction in the circuit court was diversity of citizenship, expressed as follows:

'The plaintiffs, who are citizens of the state of Indiana, residing at Evansville, therein, complain of the defendants, Joe C. Marley, Thomas Price, E. J. Roy, T. A. Roy, L. R. Coleman and E. M. Ayers, who are citizens of the state of Tennessee, residing in the western division of the western district thereof, in an action of trespass and ejectment.'

The declaration alleged ownership in fee of the plaintiffs (defendants in error here) and their possession, and alleged the entry of the defendants as follows:

'And the plaintiffs being so entitled to the said property, and so in possession thereof, the said defendants, to wit, on the said October 1st, 1898, at the said county of Lauderdale, unlawfully and without right entered into and upon the said premises, and falsely and unjustly set up title thereto, as in them respectively, and cut timber therefrom and removed the same and exercised acts of ownership thereof under such false and unjust claim of title, and denied and refused to recognize the claim of these plaintiffs to the title, or their possession thereunder, and wholly refused to admit and repudiated the same, as they still do.'

Judgment for the recovery of the land was prayed, and $3,000 damages.

Price pleaded not guilty. The plaintiff in error also pleaded not guilty, and 'that plaintiff's action accrued more than seven years before suit brought.' Against the other defendants no judgment was sought.

Upon the issues thus joined, the jury found for the plaintiffs (defendants in error) as follows:

'That they find that the plaintiffs are the owners in fee and entitled to and in possession of the following lands, situated in Lauderdale county, Tennessee, to wit:. . .'

They also further found—

'That the plaintiffs are the owners in fee, and entitled to all the accretions and alluvion formed by the Mississippi river in front of the said three (3) tracts of land above described, the same being and constituting all the land added by accretion and alluvion to the river front, as such front of the said three tracts of land existed on the Mississippi river when the said tracts of land respectively were granted, and extending from and including all the accretions and alluvion in front thereof, from the line on the river of the tract first mentioned above, furthest up stream.



As to the other land herein sued for not embraced in the above descriptions, the jury finds the plaintiffs are not entitled to the same.'

Judgment was entered in accordance with the verdict. To this judgment plaintiff in error sued out a writ of error from the circuit court of appeals of the sixth circuit, which was dismissed upon the motion of defendant in error, on the ground that there had been no summons and severance of the defendant Thomas Price. 45 C. C. A. 24, 105 Fed. 737. A petition for rehearing was filed but denied. This writ of error was then sued out.

The assignments of error are as follows:

'I. The court erred in dismissing the writ of error of petitioner upon the ground that the judgment was against two jointly, and that they did not join in the appeal.

'2. The court erred in dismissing the petition for rehearing made by this petitioner.

'In support of this assignment he submits herewith counsel's brief No. 2.

'3. The court erred in refusing to entertain jurisdiction of this cause and not reversing it upon the merits. And in support of this he refers to the assignment of error, Record, pp. 266, 273, and submits herewith his counsel's brief thereon No. 3.

'The ground of this application is that the record in this cause shows that petitioner claimed under muniments of title from the state of Arkansas and Polsdorfer and wife, and also Price claimed under muniments of title from the state of Tennessee. In other words, petitioner claims that he has a right to the writ of error under the Constitution of the United States, art. 3, § 2.'

Messrs. J. B. Heiskell, Thomas B. Turley, and C. W. Heiskell for plaintiff in error.

Messrs. Wassell Randolph, William M. Randolph, and

Mr. Justice McKenna delivered the opinion of the court: