Ayres v. Polsdorfer

• Decision Date: 04 December 1900
• Docket Number: 848.
• Citation: 105 F. 737
• Parties: AYRES v. POLSDORFER et ux.
• Court: U.S. Court of Appeals — Sixth Circuit

105 F. 737

AYRES v. POLSDORFER et ux.

No. 848.

United States Court of Appeals, Sixth Circuit.

December 4, 1900

J. B Heiskell and C. W. Heiskell, for plaintiff in error.

Wm. M Randolph, George Randolph, and Wassell Randolph, for defendants in error.

Before LURTON and SEVERENS, Circuit Judges, and EVANS, District Judge.

SEVERENS Circuit Judge.

This is an action of ejectment brought by Polsdorfer and wife, the defendants in error, against Ayres, the plaintiff in error Thomas Price, and others, to recover several thousand acres of land fronting other lands owned by the plaintiffs in the suit, on the eastern shore of the Mississippi river, in Lauderdale county, Tenn. Their right to recover the lands in question, which had been formed in the bed of the river by changes in the current and the deposit of alluvion, was rested upon the claim that they were accretions to the land which they owned along the shore. The parties defendant were made such under the provisions of the statute of Tennessee (Shannon's Code, Sec. 4972 (3231)) which provides that if there be no actual occupant of the lands, the action is to be brought 'against any person claiming an interest therein, or exercising acts of ownership at the commencement of the suit. ' The declaration alleged that the plaintiffs were at a date named 'lawfully entitled in fee and were in possession' of the lands described, and then averred that 'the plaintiffs being so entitled to the said property, and so in possession thereof, the said defendants, to wit, on the said 1st day of October, 1898, in the said county of Lauderdale, unlawfully and without right entered into and upon the said premises, and falsely and unjustly set up title thereto as in them, respectively, and cut timber therefrom and removed the same, and exercised acts of ownership thereof under such false and unjust claim of title, and denied and refused to recognize the claim of these plaintiffs to the title, or their possession thereunder, and wholly refused to admit and repudiated the same, as they still do. ' Ayres filed the general plea of not guilty, and a special plea of the statute of limitations of Tennessee. Price pleaded not guilty. For the purposes of the decision of this court, it is unnecessary to detail the proceedings in the suit which relate to or were taken by the other defendants. The case came on for trial before a jury. The plaintiffs gave evidence of their ownership of the land on the Tennessee shore, and of facts on which the accretion of the land in question was claimed to have inured to them by virtue of such ownership. The defendant Ayres (now plaintiff in error) gave evidence, to support his claim to the land, of a grant from the state of Arkansas, to a person from whom he deraigned title, of lands constituting an island or islands in the river, lying west of the middle of the channel, which constituted the boundary of the states, and of facts tending to support his contention that the lands in suit were accretions to that ownership. Price defended his claim to the lands under a grant of the lands by the state of Tennessee of recent date, contending that the plaintiff's ownership extended only to the shore, and that the made land was between that to which the plaintiff had title and the middle thread of the river, and rested upon that which had never passed from the state until its grant to that defendant. At the close of the evidence the jury, under direction of the court, rendered a verdict for the plaintiffs against Ayres and Price for all the land claimed by each of them, except a portion claimed by Price only. The defendants excepted to this direction of the verdict. Judgment was entered thereon as follows:

'It is therefore considered, ordered, and adjudged that the plaintiffs do have and recover of and from the defendants, severally, the lands hereinbefore described, found by the verdict of the jury to belong to them in fee, and that the plaintiffs do have and retain the possession of such lands under and in accordance with their said title, and that as to the lands herein sued for, not embraced by the verdict of the jury in favor of the plaintiffs, the defendants go hence without day, and that the plaintiffs recover of the defendants all their costs herein expended, and that execution issue therefor.'

Ayres tendered a bill of exceptions, which was settled and filed and, without taking notice of Price, who appears to have been the only other contestant for the lands recovered, sued out this writ of error. Upon the hearing, counsel for defendants in error raised the objection that Ayres alone prosecuted the writ, without having obtained any order permitting him (Ayres) to proceed alone, or taking any equivalent steps in that regard to justify himself in suing out the writ without the joinder of Price, and this presents a question which we must first consider. The rule is firmly established, at least in the appellate courts of the United States, that, where a judgment or decree is rendered against two or more jointly, all must join in suing out the writ of error or prosecuting an appeal, unless those who are not joined have been invited to come in and have refused; and proof that this has been done must be made to appear by the record of the circuit court, before a writ of error or an appeal by less than the whole can be allowed. The reasons for this, as has often been stated, are that the prevailing party to the judgment should have the right to execute it against those who do not appeal, and that neither the appellate court nor the party obtaining the judgment ought to be burdened with successive appeals upon the same matter. And,...