Simpson v. Greeley

ERROR to the Supreme Court of Kansas.

Carlos Greeley sued William A. Simpson and eight other persons in one of the county courts of Kansas, to recover certain lands, together with damages for the detention of them; and for waste committed by the whole nine.

The nine defendants filed a joint answer.

The plaintiff replied; and after a trial judgment was given—

'That the plaintiffs have and recover of and from said defendants the lands and tenements described in the declaration; that they also have and recover of the said William A. Simpson the sum of $4300, the value of the rents, issues, and profits of said lands and tenements, and for the timber taken from said land by the said defendant; that the plaintiffs also have and recover of the other defendants the sum of $2600, to be credited as part of the said $4300, if collected, it being the value of the rents above found.'

Simpson-none of his co-defendants joining-filed a petition in error to the Supreme Court of Kansas, alleging that the consent of none of his co-defendants could be obtained to join him in the proceeding. However, very soon afterwards they all did file a petition in error just like his own, and praying that the judgment rendered against them be reversed, for the causes and reasons set forth in his petition. The Supreme Court of Kansas affirmed the judgment, and a mandate was issued out of that court reciting,

'That a judgment in a certain civil action, wherein Carlos Greeley et AL. were plaintiffs, and William A. Simpson et AL. were defendants, was rendered by the latter court in favor of the said Greeley et AL., on a transcript of which judgment and record said Simpson et AL. prosecuted a petition in error to the Supreme Court within and for the State of Kansas.'

From this judgment of the Supreme Court of the State, Simpson alone took this writ of error, assigning no cause why the others were not joined.

Mr. W. T. Otto (with whom was Mr. J. P. Usher), preliminary to argument upon the merits, asked to have the writ dismissed, observing that it was obvious that the whole nine original defendants were plaintiffs in error in the Supreme Court of Kansas, and that a joint judgment affirming the judgment of the inferior court had been rendered against them. It was perfectly settled, he observed, that such a writ as the present one would be dismissed, there having been no effort made by Simpson to have the other co-defendants join in it, and no cause shown or alleged why they did not.

Mr. W. W. Nevison, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.