Pickett's Heirs v. Legerwood
32 U.S. 144 (1833)

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U.S. Supreme Court

Pickett's Heirs v. Legerwood, 32 U.S. 7 Pet. 144 144 (1833)

Pickett's Heirs v. Legerwood

32 U.S. (7 Pet.) 144

Syllabus

The court refused to quash a writ of error on the ground that the record was not filed with the clerk of the Court until the month of June, 1932, the writ having been returnable to January term, 1832. The defendant in error might have availed himself of the benefit of the twenty-ninth rule of the Court, which have him the right to docket and dismiss the cause.

The appropriate use of a writ of error coram vobis is to enable a court to correct its own errors, those errors which preceded the rendition of the judgment. In practice, the same end is now generally attained by motion, sustained, if the case require it, by affidavits, and the latter mode has superseded the former in the British practice.

In the Circuit Court for the District of Kentucky, a judgment in favor of the plaintiff in an ejectment was entered in 1798, and no proceedings on the same until 1830, when, the period of the demise having expired, the court, on motion, and notice to one of the defendants, made an order inserting a demise of fifty years. It having been afterwards shown to the court that the parties really interested in the land, when the motion to amend was made, had not been noticed of the proceeding, the court issued a writ of error coram vobis, and gave a judgment sustaining the same, and that the order extending the demise should be set aside. From this judgment a writ of error was prosecuted to this Court, and it was held that the judgment on the writ of error coram vobis was not such a judgment as could be brought up by a writ of error for decision to this Court.

In the Circuit Court of Kentucky, at November term, 1831, the defendants in error, Samuel Legerwood, Hugh Roseberry, William Henderson, William Mitchell, and John Graves filed a petition, stating that in 1796, a certain Martin Pickett brought his action of ejectment in the District Court of the United States of the Kentucky District against William Mitchell and William Maxwell. That the petitioner, Samuel Legerwood, under whose father and testator, William Legerwood, the said defendants, who were tenants, claimed was, with the said tenants, made defendant, and in 1798, a judgment was obtained in the said court in favor of Pickett, but no writ of possession was

Page 32 U. S. 145

executed in favor of Pickett. The demise in the declaration was laid at ten years, and expired in 1806, and remained dead and inoperative for nearly twenty-five years, when, before the spring term of the court in 1830, a notice was served by the attorney for the devisees of Martin Pickett on William Mitchell, that the court would be moved to amend the demise by inserting a new one, and on the sixth day of the term he procured an order to be made, inserting a demise of fifty years, without the knowledge of any person interested in the said land, at that time, which ex parte order was not discovered until one year after. That a writ of possession was then, at the time of filing the petition, in the hands of the marshal, and he was about to take possession of the said land.

The petition proceeded to set forth the title under which William Legerwood, the father of Samuel Legerwood, claimed the land, against the title set up by Martin Pickett. That William Mitchell, one of the defendants in the suit, was a tenant of part of the land; that the tract of Legerwood was, several years after the judgment in ejectment, sold, by an execution in favor of the devisees of Pickett, and was bought by Thomas Starke, to whom the sheriff conveyed the same, to whom also William Mitchell, the said defendant, sold out his interest in the land, and moved away nearly one hundred miles from the land, and had not, for many years, been a tenant of it. This fact was alleged to have been well known to the attorney for the devisees of Pickett, and that Mitchell, having no interest in the same, gave no information of the intended motion to the rest of the petitioners, who were terre tenants. The petition proceeded to state sundry conveyances and devises of the land under which the parties to the petition all became owners or claimants of the same, or possessors thereof, before the said motion to amend the demise, and the notice of the same William Mitchell.

The petitioners, Henderson, Graves, and Roseberry, said they were exclusive terre tenants, and, as such, were entitled to notice, even if the judgment was to be revived by scire facias, and that Mitchell had not been a terre tenant for upwards of ten or twelve years, and had no interest therein. That Samuel Legerwood had never been a terre tenant, but was entered

Page 32 U. S. 146

defendant for those claiming under the title of his deceased father, and that Maxwell had abandoned the possession, and had been dead for many years. The petition prayed the court to award a writ of error coram vobis to reverse and annul the order extending the demise and to quash the impending writ of habere facias possessionem, and for such other relief as the case required.

The circuit court ordered an injunction to stay proceedings on the habere facias, and on 26 November, 1831, the following judgment was entered:

"The court being now sufficiently advised of and concerning the premises, do consider that the plaintiffs' writ of error coram vobis be sustained; that the order extending the demise in the declaration of Seekright, on demise of Pickett, against Mitchell, &c., be set aside, and the habere facias which issued thereon be quashed, and that the plaintiffs recover of the defendants their costs herein expended."

From this judgment, the plaintiffs in error, on 28 November, 1831, prosecuted a writ of error to this Court. The citation was dated of 28 November, 1831, and required the defendants in error to appear at the January term, 1832, of this Court.

The record brought up by the writ of error, was filed in June, 1832.

Loughborough, for the defendants in error, moved to quash the writ of error on the following grounds:

1. Because, although the writ of error was returnable to January term, 1832, of this Court, the record was not filed until June 1832, the term of January, 1832, having thus intervened.

2. Because the proceedings of the circuit court on the writ of error coram vobis were not of such a nature as to admit of revision in this Court, it being no more than a different form or mode of exercising the power the circuit court had over its acts, and therefore subject to the rules which this Court have established against revising the interlocutory acts or orders of inferior courts.

Page 32 U. S. 147

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