Smith v. McNeal

'Defendants do not claim under, but adversely to, and deny the validity of plaintiffs' claim of title under the aforesaid acts of congress; and the validity of plaintiffs' claim of title under the aforesaid acts of congress is the only question in controversy between the plaintiffs and defendants.'

The defendants pleaded the seven-years' limitation prescribed by the statute of Tennessee, to which the plaintiffs pleaded the following replication:

'Now come the plaintiffs, by attorneys, and as to defendants' plea herein pleaded say, that on the thirty-first of December, 1873, and within seven years from the time the plaintiffs' cause of action accrued, the plaintiffs brought suit against defendants in this court to recover possession of the same premises whereof plaintiffs here now seek to recover possession; and the said suit was commenced upon the same cause of action that the plaintiffs' now writ and action are founded; that the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the first of September, 1877, upon which day a judgment (which said judgment remaining of record in this court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this court, and plaintiffs here make profert of the same; all of which plaintiffs are willing to certify.'

The defendants demurred to this replication on two grounds: First, because it appeared, by the judgment referred to and made a part of the replication, that said judgment was upon the merits; and, second, because it appeared from the record of said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want of jurisdiction. The cause was heard upon this demurrer, which the court sustained, and entered judgment dismissing plaintiffs' suit. To reverse that judgment this writ of error is prosecuted.

D. E. Myers, W. M. Sneed, S. P. Walker, S. Shellabarger, and J. M. Wilson, for plaintiffs in error.

P. Phillips and W. Hallett Phillips, for defendants in error.

WOODS, J.