This case was decided on the same ground as the preceding case
of
McNulty v. Batty.
An action of ejectment was commenced at the April term, 1845, of
the Iowa County Court by the defendant in error against the
plaintiffs in error to recover a lot of land situate in that
county. The venue was afterwards changed to the County of
Milwaukee. Issue having been joined, and a jury empanelled and
sworn, a verdict was found for the plaintiff, upon which a judgment
was entered.
On 19 July, 1847, the case was carried by writ of error to the
Supreme Court of Wisconsin Territory, and on 2 August the judgment
of the County Court was affirmed by a divided court.
Whereupon a writ of error to the Supreme Court of the Territory
of Wisconsin was sued out of this Court, and the citation served on
24 November, 1847.
Wisconsin was admitted into the Union as a state by the act of
Congress approved 29 May, 1848.
MR. JUSTICE NELSON delivered the opinion of the Court.
The suit was an action of ejectment brought by the plaintiff
Page 51 U. S. 82
below, the defendant in error, in the second, and removed to the
Third Judicial District of the territory, to recover possession of
a small piece of land, and was commenced on 15 April, 1845.
Issue being joined between the parties, such proceedings were
had thereon that judgment was afterwards rendered against the
defendants in the June term of said court in the year 1846.
The case was afterwards removed to the supreme court of the
territory, and the judgment of the court below affirmed by a
divided opinion at the July term of that court, to-wit, on 2
August, 1847.
The judgment was afterwards removed to this Court by a writ of
error for review. The citation is signed 22 November, 1847.
The case was therefore pending here on 29 May, 1848, at the time
of the admission of the territory into the Union as a state. It is
one not of a federal character, but belonging to the state
judicature, and therefore falls within the decision of the case of
McNulty v.
Batty, just made, and the writ of error must be
abated.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the Territory of Wisconsin, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court that this writ of error be and the same
is hereby abated.
Mr. Walker, of counsel for the defendant in error, moved the
Court to direct the clerk to what court the mandate or other
process prescribed by the forty-third rule of Court should be
addressed. On consideration whereof, it is now here ordered by the
Court that the clerk do not issue any mandate or other process in
this case, but only a certified copy of the judgment this day
rendered in this cause.
