Ellenwood v. Marietta Chair Co

• Citation: 15 S.Ct. 771,158 U.S. 105,39 L.Ed. 913
• Decision Date: 06 May 1895
• Docket Number: No. 234,234
• Parties: ELLENWOOD v. MARIETTA CHAIR CO
• Court: United States Supreme Court

158 U.S. 105

15 S.Ct. 771

39 L.Ed. 913

ELLENWOOD

v MARIETTA CHAIR CO.

No. 234.

May 6, 1895.

Edward B. Whitney and Geo. L. Sterling, for plaintiff in error.

A. D. Follett, R. A. Harrison, and Joseph Olds, for defendant in error.

Mr. Justice GRAY.

This action was brought in the circuit court of the United States for the Southern district of Ohio by one Walton, administrator of the estate of Latimer Bailey, deceased, and a citizen of New Jersey, against the Marietta Chair Company, a corporation of Ohio.

The original petition contained two counts,—one count alleging that the defendant on January 1, 1875, and on divers days between that day and May 4, 1885, in the lifetime of Bailey, unlawfully and with force broke and entered upon a tract of land in the county of Pleasants and state of West Virginia, owned and possessed by Bailey, and, by cutting and hauling timber thereon, cut up, obstructed, incumbered, and devastated the land, and cut down, removed, and carried therefrom a large quantity of timber, and converted and disposed of it to the defendant's own use; and the other count alleging that the defendant, on the days aforesaid, unlawfully took and received into its possession a large quantity of logs, the property of Bailey, and then lately cut and removed from that land, and converted and disposed of the same to its own use.

A motion by the defendant that the plaintiff be required to make his complaint more definite and certain was ordered by the court to be sustained, 'unless the plaintiff amend his petition so as to show that the trespass complained of was a continuous trespass between the times mentioned in the petition.'

The plaintiff thereupon, by leave of the court, filed an amended petition, containing a single count, alleging Baily 's ownership and possession of the land, and of the timber growing thereon, and that on January 1, 1875, 'and on divers other days from time to time continuously between that day and' May 4, 1885, sundry persons, knowing the land and the timber thereon to be Bailey's property, without any right or authority from him, and at the instance and for the use and benefit of the defendant, cut down and removed, and sawed into logs, a large quantity of the timber; and the defendant, knowing the logs to be cut from the land, and both land and logs to be Bailey's property, took the logs into its possession, and converted them to its own use.

After the filing of an answer denying the allegations of the amended petition, and before the case came to trial, the court, upon Ellenwood's suggestion that Walton's letters of administration had been revoked, and Ellenwood had been appointed administrator in his stead, entered an order reviving the action in the name of Ellenwood as administrator, but afterwards adjudged that this order be set aside, and that the action be abated and stricken from the docket. This writ of error was thereupon sued out in the name of Walton, and was permitted by this court to be amended by substituting the name of Ellenwood. Walton v. Chair Co., 157 U. S. 342, 15 Sup. Ct. 626.

Various grounds taken by the defendant in error in support of the judgment below need not be considered, because there is one decisive reason against the maintenance of the action.

By the law of England, and of those states of the Union whose jurisprudence is based upon the common law, an action for trespass...