Owing v. Kincannon
32 U.S. 399

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U.S. Supreme Court

Owing v. Kincannon, 32 U.S. 7 Pet. 399 399 (1833)

Owing v. Kincannon

32 U.S. (7 Pet.) 399

Syllabus

Appeal dismissed because all the parties to the decree in the circuit court had not joined in the appeal to this Court.

In the circuit court, Andrew Kincannon, the appellee, filed a bill on 28 December, 1815, claiming a tract of land, by virtue of a prior entry to that under which the persons named in the bill asserted a title to, and held possession of the land, and praying the court to compel the defendants to release all claim to the same, and that he might be quieted in the enjoyment and possession thereof.

The bill was filed against Thomas Deye Owings, James M. Blackey, Ralph Phillips, John Head, Benjamin Head, Milton Stapp, Charles Buck and nineteen others, as defendants, and was afterwards dismissed as to some, and abated as to others, of the persons so named. During the pendency of the proceedings, Ralph Phillips and John Head died, the former leaving Lewis W. R. Phillips, his heir, and the other leaving Nancy Head, his widow, and Sally Head, his only child, who, after the decease of their respective parents, became defendants in the cause.

At November term, 1825, the circuit court made a decree in favor of the complainant, by which it was ordered, that the complainant to recover against the defendants, Thomas Deye Owings, James M. Blakey, Ralph Phillips, Milton Stapp, John L. Head and Charles Buck, and that said defendants do, on or before the first day of March next, by deed, with warranty against themselves and their heirs, convey and release unto the complainant, all their right, title and interest in and to the land represented on and designated on the connected plat, returned under an interlocutory decree theretofore made. On 15 May, 1830, an order was made granting an appeal, and the following bond was executed, a copy of which was certified in the record.

Page 32 U. S. 400

"Know all men, by these presents, that we, Lewis W. R. Phillips, Sally Head, Nancy Head and ________ are held and firmly bound unto Andrew Kincannon, in the sum of five hundred dollars, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents, and sealed with our seals, and dated this 15 May, 1830. The condition of the above obligation is such that whereas, the above-bound Lewis W. R. Phillips, Sally Head and Nancy Head, have prayed for and obtained an appeal from the Seventh Circuit Court of the United States in and for the Kentucky District, to the Supreme Court of the United States, in a certain suit in chancery, wherein the said Andrew Kincannon was complainant, and Thomas D. Owings, Ralph Phillips, the ancestor of said L. W. R. Phillips, and John L. Head, the husband of said Sally Head, and ancestor of said Nancy Head, were defendants. Now if the said Lewis W. R. Phillips, Sally Head and Nancy Head shall well and truly prosecute the said appeal with effect, or, on failure thereof, pay to the said Andrew Kincannon all costs that he incur in the defense thereof, and may be legally awarded against them, the said L. W. R. Phillips, Nancy and Sally Head, then the above obligation to be void, otherwise to remain in full force and virtue."

"THOMAS TRIPLETT [SEAL]"

On 18 May, 1830, the following citation was issued to Andrew Kincannon.

"Whereas an appeal has been prayed by Lewis W. R. Phillips, sole heir of Ralph Phillips, deceased, and Sally Head, widow, and Nancy Head, the only child of John L. Head, deceased, and is hereby granted, to the Supreme Court of the United States to reverse a decree of the Seventh Circuit Court of the United States in and for the Kentucky District, at the November term, 1825, wherein the said Andrew Kincannon is complainant, and Thomas D. Owings, &c., with ancestors of said L. W. R. Phillips and S. & R. N. Head were defendants. These, therefore, are to cite and command you that you be and appear in the Supreme Court of the United States at the City of Washington, on the second Monday in January next,

Page 32 U. S. 401

and then and there to be heard, if anything you have to say upon the said appeal. Witness my hand, as an Associate Justice of the Supreme Court of the United States, and Presiding Judge of the Seventh Circuit Court of the United States of America in and for the Kentucky District this 18 May, 1830."

"JOHN MCLEAN"

"Justice supreme court United States"

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