Smith v. Trabue's HeirsAnnotate this Case
34 U.S. 4
U.S. Supreme Court
Smith v. Trabue's Heirs, 34 U.S. 9 Pet. 4 4 (1835)
Smith v. Trabue's Heirs
34 U.S. (9 Pet.) 4
Jurisdiction. The judicial act authorizes the Supreme Court to issue writs of error to bring up any final judgment or decree in a civil action or suit in equity depending in the circuit court, &c. But a judgment awarding a writ of restitution to an action of ejectment, where, in the execution of a writ of habere facias possessionem, the sheriff had improperly turned a person out of possession, is not a final judgment in civil action; it is no more than the action of the court on its own process, which is submitted to its own discretion. This Court takes no jurisdiction in such a case.
In the circuit court, the defendants in error filed a petition in May, 1830, setting forth that on the demise of Richard Smith, an action of ejectment was instituted in the circuit court against Richard Fenn, with notice to Hiram Bryant and William Bryant and others; that the Bryants were tenants to the petitioners and to Robert Trabue, who appeared to the ejectment, had his tenants entered as defendants; and a judgment was rendered at May term, 1828, against them. No writ of habere facias possessionem was issued on this judgment, and at November term, 1818, a judgment was rendered against other tenants, and on that judgment a writ of habere facias possessionem was issued, and the marshal of the District of Kentucky, under this last judgment and writ, turned out of possession John Evans, who was a tenant of the petitioners, resident on the same place occupied by the Bryants when the suit was first brought and judgment rendered, and then possessed by the petitioners. The record showed that this writ of habere facias possessionem issued on 17 November, 1829.
At May term of the court in 1830, a motion was made in behalf of the petitioners, and a rule awarded on Smith the plaintiff in error and defendant in the petition, to show cause why a writ of restitution should not be awarded to them to restore the possession of the tenements held by their tenants, John Evans and others, taken from them by the marshal on
the writ of possession mentioned in their petition. The marshal's return showed that he had turned John Evans, James McGuire, and William Acres, who were the tenants of the petitioners, out of possession.
At May term, 1831, the court ordered a writ of restitution to be awarded to the petitioners, the plaintiffs in the motion, to restore them to the possession of the land from which their tenants had been removed by the marshal. To the opinion of the circuit court in overruling objections made by the defendant's counsel to the objects of the motion, and awarding possession to the plaintiffs, the defendant, now plaintiff in error, excepted and prosecuted this writ of error.
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