Where a complainant filed a bill in chancery against numerous
defendants; seven of whom were selected by the court to represent
the rest, and after these seven had answered the bill, two of them
filed a cross-bill against the original complainant and also
against all their co-defendants, an appeal from a decree dismissing
this crossbill will not lie to this Court. It must be dismissed for
want of jurisdiction.
Page 58 U. S. 592
The two defendants who filed the cross-bill against the original
complainant and also against their co-defendants claim the land in
dispute by a paramount title. The complainant has nothing to do
with a dispute between the defendants, nor can this properly be
considered a cross-bill.
A decree dismissing this bill cannot be considered as a final
decree in the suit. It will come up for review, like any other
interlocutory proceeding, if upon a final decision the case should
be brought up by appeal to this Court.
The facts are stated in the opinion of the Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
A bill was filed by Hiram Carver, of the State of Alabama,
against Joseph W. Matthews, of Mississippi, and some two hundred
others, part of them residents of this state, part of Tennessee,
but most of them without any residence mentioned, setting forth the
treaty made with the Chickasaw tribe of Indians at Pontotoc Creek
in 1832, confirmed in 1833, by which said tribe ceded to the
government all their lands east of the Mississippi River, and also
a treaty with the same tribe, 24th May, 1834, confirmed 1st July
the same year, modifying the provisions of the first one, which
treaties provided for certain reservations of land to be granted in
fee to the heads of Indian families; and for the survey and sale of
the residue, as in the case of other public lands, with this
difference, that the lands remaining undisposed of at public sale
should be liable to private entry, at one dollar and twenty-five
cents per acre for the first year thereafter, at one dollar the
second, at fifty cents the third, at twenty-five cents the fourth,
and thereafter at twelve and a half cents per acre.
The bill further states that down to January, 1843, there
remained subject to private entry, at twelve and a half cents per
acre, several tracts of land particularly set forth in a schedule
annexed, and that on that day the complainant offered to purchase
at the land office all the lands described in the aforesaid
schedule at the price of twelve and a half cents per acre, and for
this purpose made an application to A. J. Edmondson, the register
of said land office, but that the said register illegally refused
to permit him to make the said purchase; that he also tendered to
J. F. Wray, the receiver, the amount of the purchase money for the
tracts he had thus applied to enter, but that he refused to receive
the money or issue the proper certificates.
Page 58 U. S. 593
The complainant further states that since his application as
above set forth, the register and receiver have permitted the
defendants to enter and purchase the several tracts in sections and
subdivisions and at the times mentioned in the schedule above
referred to, and charging that the said defendants had notice of
the rights and equities of the complainant at the time.
The complainant then prays to make all the defendants before
enumerated parties to the bill, and as they are very numerous, that
the court will designate a small portion of them to represent the
whole body, and upon whom personal service of the subpoena shall be
made. And further that the several entries and purchases made by
the defendants be set aside, and that the complainant be permitted
to enter and purchase the several tracts at the price of twelve and
a half cents per acre, or that the defendants be decreed to convey
the same to the complainant and to deliver up the possession.
It appears from the record the court, on the application of the
complainant, ordered that the cause should proceed against seven of
the defendants, James Brown, Jacob Thompson, John P. Jones, William
H. Duke, John D. Bradford, Thomas N. Niles, and Eli Ayres, and upon
whom process was afterwards served, and who appeared in said
cause.
Separate answers were put in by these defendants setting forth
the entry and purchase at private sale from the register and
receiver of the several portions of the tract claimed by each of
them, and also patents for the same from the government. To which
answers replications were filed.
It further appears from the record that at this stage of the
proceedings, Thomas N. Niles and Eli Ayres, two of the defendants,
filed a cross-bill against the complainant Carver and all of their
numerous co-defendants setting forth the substance of the original
bill and then charging that they had obtained a title to the
several tracts in controversy, or to portions of them, long prior
to the title claimed by their co-defendants, setting forth also
particularly the source of title. They pray that this cross-bill
may be heard at the same time with the original bill of Carver, and
that any claim he may set up to the several tracts of land claimed
by them in the cross-bill, may be set aside and annulled; also that
the other defendants to the cross-bill be required to produce their
patents to any and all of the lands claimed by them, that they may
be cancelled, and that possession be delivered to the
complainants.
It further appears from the record that afterwards the
complainants moved the court that the five co-defendants, who had
appeared in the original bill, and the complainant in that bill, be
made defendants to represent the other defendants mentioned,
Page 58 U. S. 594
as they are so numerous as to render it inconvenient to make all
of them parties to the suit; which motion was granted.
These defendants were afterwards personally served with process
or appeared in the cause and demurred to the cross-bill, which
demurrer was sustained by the court and the bill dismissed. The
case is now before us on an appeal from this decree.
It will have been seen from the brief reference to the original
bill in this case that Carver, the complainant, sought to establish
an equitable title to large tracts of the public lands which had
been laid off in townships, ranges, and sections situate in the
State of Mississippi, having offered to comply, as he alleges, with
the law providing for the entry and purchase at private sale of the
several tracts, but was prevented from making the entries and from
obtaining the necessary certificates by the illegal and unwarranted
acts of the register and receiver at the land office. The bill is
filed against the defendants, who had subsequently entered and paid
for the land, obtained the necessary certificates, and upon which
patents have since been issued.
The defendants are alleged to be very numerous, and for this
reason the court below dispensed with the necessity of making all
of them parties and directed that their interests should be
represented by some seven of them, on whom process was directed to
be served.
Without intending to express any definitive opinion in this
matter, we must say that it is difficult to see any interest or
estate in common among these several defendants that would
authorize the rights of the absent parties to be represented in the
litigation by those upon whom process has been served and who have
appeared to defend the suit. Their title to the land claimed by the
complainant is separate and independent, without anything in
common, it would seem, that could have the effect to make a decree
against one binding upon the others or even require them to join in
the defense.
Smith v.
Swormstedt, 16 How. 288. We do not intend, however,
to pursue this branch of the case.
As it respects the cross-bill, it may be proper to observe that
the matters sought to be brought into the controversy between the
complainants in that and their co-defendants do not seem to have
any connection with the matters in controversy with the complainant
in the original bill. Nor is it perceived that he has any interest
or concern in that controversy. These two complainants in the
cross-bill set up a title to the lands is dispute which, they
insist, is paramount to that of their co-defendants, and seek to
obtain a decree to that effect and to have the possession delivered
to them. This is a litigation exclusively between these parties,
and with which the complainant
Page 58 U. S. 595
in the original bill should not be embarrassed or the record
encumbered. The same matter has been set up in their answer to the
original bill, against the equitable title claimed by the
complainant, presenting the only issue in which he is interested
and upon which the questions between them can be heard and
determined.
A cross-bill is brought by a defendant in a suit against the
plaintiff in the same suit, or against other defendants in the same
suit, or against both, touching the matters in question in the
original bill. It is brought either to obtain a discovery of facts
in aid of the defense to the original bill or to obtain full and
complete relief to all parties as to the matters charged in the
original bill.
It should not introduce new and distinct matters not embraced in
the original bill, as they cannot be properly examined in that
suit, but constitute the subject matter of an original, independent
suit. The cross-bill is auxiliary to the proceeding in the original
suit and a dependency upon it.
It is said by Lord Hardwicke that both the original and
cross-bill constitute but one suit, so intimately are they
connected together.
Field v. Schieffelin, 7 J.Ch. 252.
The office of a cross-bill has been very fully discussed at this
term by MR. JUSTICE CURTIS in the case of
Shields v.
Barrow, and I need not therefore pursue it, but refer only to
that opinion for the true doctrine on the subject.
It is manifest from this brief reference to the doctrine that
any decision or decree in the proceedings upon the cross-bill is
not a final decree in the suit, and therefore not the subject of an
appeal to this Court under the 22d section of the Judiciary Act.
The decree, whether maintaining or dismissing the bill, disposes of
a proceeding simply incidental to the principal matter in
litigation, and can only be reviewed on an appeal from the final
decree disposing of the whole case. That appeal brings up all the
proceedings for reexamination when the party aggrieved by any
determination in respect to the cross-bill has the opportunity to
review it, as in the case of any other interlocutory proceeding in
the cause.
For these reasons, the appeal in this case must be
Dismissed for want of jurisdiction, and the case remanded to
the court below.
MR. JUSTICE CATRON concurred in the judgment, but dissented from
the reasoning.
MR. JUSTICE CATRON.
In this instance, the bill and cross-bill are but one suit,
and
Page 58 U. S. 596
ought regularly to have been heard at the same time, and if an
appeal was prosecuted from the decree to this Court, by any party
who supposed himself to be aggrieved, the whole suit would
necessarily be brought up.
Here, the cross-bill was heard and dismissed pending the
original suit of which it was part. The decree pronounced was
partial, and as no appeal lies from any but a final decree, and
this decree not being final, the consequence is that this Court has
no jurisdiction to examine the merits presented and insisted on in
the argument. All that we can properly do is to dismiss the appeal,
because it brought up nothing. Now as to the matters discussed in
the opinion just delivered, founded on a copy of the proceedings
had below and filed in this Court, I can only say that I have no
opinion in regard to them, never having even read the record
further than to ascertain that this Court had no jurisdiction in
the supposed case presented to us. I therefore concur in the
judgment that the case shall be dismissed for want of jurisdiction,
without going further.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered, adjudged, and
decreed by this Court that this cause be and the same is hereby
dismissed for the want of jurisdiction.