Connor v. Peugh's Lessee

THIS case was brought up by writ of error from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The counsel for the defendant in error moved to dismiss the writ of error under the following circumstances:--

An action of ejectment was brought by Peugh's lessee to recover the eastern half part of lot number seven, in the square or reservation marked B in the city of Washington. A copy of the declaration was served on Mrs. Connor, on the 15th March, 1854, the court being about to meet on the 27th, and the rules requiring the service to be made at least ten days before court. At the term of March, there being no appearance for the defendant, a motion was made by the plaintiffs' counsel for judgment against the casual ejector, which was postponed till next term.

At October term, 1854, judgment was entered against the casual ejector, and also against Mary Ann Connor, the tenant in possession.

On the 24th of March, 1855, a writ of habere facias possessionem was sued out, which was returned, 'came to hand too late for service.'

On the 23d of May, 1855, an alias writ was issued, returnable on third Monday of October thereafter.

Before the return day of this writ, namely, on the 5th of June, 1855, Mrs. Connor appeared in court by her counsel and moved to set aside the judgment and also to quash the writ of ''hab. fac. poss.'', upon the ground that a copy of the declaration was not served upon her ten days before the meeting of the court at March term, 1854. In which case no judgment by default ought to have been rendered against her until March term, 1855.

At October term, 1855, this motion was overruled and the petition was dismissed. Whereupon, Mrs. Connor prayed an appeal to the supreme court of the United States, which was granted.

A writ of error brought the whole proceedings up to this court.

The motion to dismiss upon the ground that the ruling of the court below in dismissing the petitioner was a matter within the sound discretion of the court, and not the subject of a writ of error, was argued by Mr. Bradley and Mr. Lawrence in support of it, and opposed by Mr. Brent.

Mr. Justice GRIER delivered the opinion of the court.