Walton v. Marietta Chair Company

This was a motion to amend a writ of error from this court to the circuit court of the United States for the Southern district of Ohio, by changing the name of the plaintiff in error. The record of that court showed the following matters:

The original action was brought in November, 1889, by 'W. N. Walton, administrator of the estate of Latimer Bailey, deceased,' a citizen of New Jersey, against the Marietta Chair Company, a corporation of Ohio, and having its principal office and place of business in that district, to recover damages in the sum of $10,000, for trespassing upon land of Bailey and cutting and carrying away timber therefrom in his lifetime.

After the filing of an answer by the defendant, and of a replication by Walton, as Bailey's administrator, 'came L. W. Ellenwood,' and suggested that Walton's letters of administration had been revoked, and 'the said L. W. Ellenwood has been duly appointed and qualified as administrator of the estate of said Latimer Bailey, deceased'; and the court, 'on motion of the said L. W. Ellenwood,' ordered 'that the said action do stand revived in the name of said L. W. Ellenwood as such administrator, and proceed in his favor.'

The defendant filed an answer, protesting against 'the revivor of this action in the name of L. W. Ellenwood, as administrator of the estate of Latimer Bailey, deceased,' and setting up that 'said L. W. Ellenwood is not the successor in office of said W. N. Walton, as the administrator of the estate of said Latimer Bailey, deceased,' and that Walton never was such administrator, and any appointment of him as such was void for want of jurisdiction in the court which appointed him.

Upon the defendant's application, and after the introduction of evidence and a hearing, the court adjudged that the order reviving the action in Ellenwood's name be vacated and set aside, and that the action be abated and stricken from the docket. To this judgment 'the said L. W. Ellenwood duly excepted,' and 'the plaintiff, L. W. Ellenwood, as administrator of the estate of Latimer Bailey, deceased,' tendered a bill of exceptions, which was allowed by the court on May 27, 1891.

On June 19, 1891, a bond was filed in the clerk's office, executed by 'L. W. Ellenwood as principal' and by two other persons as sureties, reciting that 'the above-named L. W. Ellenwood, as admr. of the estate of Latimer Bailey, decd.,' had taken out a writ of error from this court 'to reverse the judgment rendered in the above-entitled action,' and conditioned that 'the above-named L. W. Ellenwood, admr. as aforesaid, shall prosecute his said writ of error to effect, and answer all costs if he shall fail to make good his plea.'

On June 20, 1891, there was filed, in the clerk's office of that court, an assignment of errors and prayer for citation, purporting to be made by 'L. W. Ellenwood, by his attorneys,' three persons named, and signed by them as 'Attorneys for Plaintiff in Error.'

In all these proceedings the action was entitled 'W. N. Walton, Administrator of the Estate of Latimer Bailey, Deceased,' as plaintiff, against the Marietta Chair Company, as defendant.

The writ of error from this court to the circuit court was dated June 20, 1891, was signed by the clerk, and under the seal of that court, as permitted by Rev. St. § 1004, and began thus: 'Because in the records and proceedings and also in the rendition of the judgment of a plea which is in the said circuit court, before you, between W. N. Walton, admr. of the estate of Latimer Bailey, dcd., and the Marietta Chair Company, a manifest error hath happened, to the great damage of the said W. N. Walton, admr. as aforesaid, as by his complaint appears.'

In this court, at this term, 'L. W. Ellenwood, by his counsel,' moved to amend the writ of error, by striking out, in two places therein, the words 'W. N. Walton,' and substituting the words 'L. W. Ellenwood'; and the defendant in error filed an affidavit of a person who testified that he was well acquainted with L. W. Ellenwood, who had filed the motion to amend this writ of error, and that his Christian name was not L., but Lowell, and his legal name was Lowell W. Ellenwood.

E. B. Whitney, for the motion.

A. D. Follett, opposed.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.