King v. Davis

• Decision Date: 21 December 1903
• Citation: 137 F. 198
• Parties: KING v. DAVIS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

137 F. 198

KING v. DAVIS et al.

United States Circuit Court, W.D. Virginia.

December 21, 1903

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

M. F Stiles and Daniel Trigg, for plaintiff.

R. R. Henry and E. M. Fulton, for defendants.

The questions now to be decided originated in an action of ejectment brought in this court at Harrisonburg in 1896 by Henry C. King against the following 17 persons: John Allen, Cyrus Blankenship, Reese Davis, Bazil Dotson, David Dotson, John Dotson, Ransom Dotson, Elijah Estep, H. M. Francis, Montreville Hunt, Robert Hurley, Archibald Justus, S.W. McInturf, Jane Mounts, Levi Woolford, Mary Woolford, and Wm. R. Woolford. The notice attached to the declaration, required by section 2727 et. seq., Code 1887 (Va. Code 1904, p. 1404), was addressed to each of the above-named defendants. In the declaration the land sued for is described in the language of the Morris grant (Watkins v. King, 118 F. 524, 526, 55 C.C.A. 290). The return of service of the notice and declaration is silent as to S.W. McInturf, Mary Woolford, and Wm. R. Woolford. It is not in the required form as to Cyrus Blankenship and Reese Davis. As to H. M. Francis, a question has been raised because his name is erroneously spelled 'France' in these and in some of the papers to be subsequently mentioned. The return as to the remaining defendants is in valid form. The service was made by one Manns, not an officer, who verifies his return. See section 3207, Code 1887 (Va. Code 1904, p. 1684). In accordance with the notice the declaration was filed, and therewith the above-mentioned return of service, on June 15, 1896. At the second June rules, 1896, the common order was noted as to all the defendants except McInturf and Mary and Wm. R. Woolford. At the first July rules following the clerk's entry in the rule docket was 'Common order confirmed and writ of inquiry. ' Nothing further seems to have been done until July 11, 1898. On that day the plaintiff issued a notice (to be hereafter designated as the notice of July 11, 1898) addressed to each of the above-named 17 defendants, to the effect that he would on July 19, 1898, or as soon thereafter as counsel could be heard, ask leave to file an amendment to his declaration, 'giving more specific description of the premises declared for,' and that he would also move for a rule requiring the defendants to plead to said declaration. The return of service of this notice does not mention McInturf, Mary Woolford, or Wm. R. Woolford. It is not in the required form as to John Allen, Cyrus Blankenship, Reese Davis, H. M. Francis, Archibald Justus, and Levi Woolford. As to the remaining defendants the return is in strictly regular form. It should be stated here that the name of Montreville Hunt is occasionally spelled in the various papers in this record 'Montville,' and occasionally 'Monteville.' The name Justus is occasionally spelled 'Justice.' But no point has been made as to these differences in spelling.

On July 19, 1898, the following order was entered:

'At an adjourned term of the Circuit Court of the United States of America for the Western District of Virginia, held at the courthouse in Harrisonburg on Tuesday, July 19th, 1898. Present, Hon. John Paul, Judge, presiding.

'Henry C. King v. Reese Davis et als. Ejectment.

'This day came the plaintiff herein by his counsel in open court, and presented a proposed amendment to his declaration in this cause, and moved the court for leave to file the same; and the said proposed amendment being inspected by the court, and it being deemed proper to be made, and it appearing to the court that due notice of the intention of plaintiff to offer said amendment at this time has been given to defendants Reese Davis, Jane Mounts, Elijah Estep, Monteville Hunt, Robert Hurley, H. M. Francis, Cyrus Blankenship, Bazil Dotson, Ransom Dotson, John Dotson, John Allen, and Archibald Justice, it is ordered that plaintiff have leave to amend his declaration herein in the direction of a more specific description of the premises therein claimed, and to file herein his said proposed amendment, which is accordingly done.

'And it appearing that defendants herein have not heretofore pleaded to said declaration, on further motion of plaintiff, by his counsel, it is ordered that a rule to plead to said declaration be, and the same is hereby, awarded, requiring defendants who were served with notice of said motion as aforesaid to appear and plead to said declaration, as amended, at or before the September next rules of this court, and requiring the other defendants in said case to appear and plead to said declaration at the second rule day after said rule shall have been served upon them.

'July 19th, 1898.

John Paul, Dist. Judge.'

The amended declaration filed under the foregoing order on July 19, 1898, commences: 'Now comes the plaintiff above named, and, by leave of court first had, amends his declaration, heretofore filed herein, so far only as relates to the description of the premises therein declared for, by inserting after the description therein the following words, viz., 'which said tract of land is more particularly and more accurately described according to a resurvey thereof made by W. D. Sell, C. E., in the year 1895, under order of this court, as follows, to wit.' ' The description that follows is of the location of the Morris grant, as contended for by King in the case of Watkins v. King, 118 F. 527, as shown on the plat in that report, by the letters 'A.P.H.I.J.M.'

Bearing date of July 19, 1898, there are in the papers of this cause many identical copies of a rule to show cause why certain defendants should not plead to the amended declaration. But no attempt appears to have been made to serve this rule.

The next step taken in the cause was the entry on October 31, 1899, of the following order:

'At an adjourned term of the Circuit Court * * * continued and held at the courthouse in Harrisonburg, on Tuesday the 31st day of October, 1899:

'Henry C. King v. Reese Davis et als. In Ejectment.

'It appearing to the court that the defendants have not appeared or pleaded herein, and time to plead having expired, on motion of plaintiff by his counsel, it is ordered that said cause be set down for inquiry at the next term of this court, and that the clerk notify the defendants hereof, and of the time of holding said term, by sending copies of this order and of the order fixing said term to said defendants by mail.

'Oct. 31st, 1899.

John Paul, Dist. Judge.'

On November 17, 1899, there was filed a copy of the foregoing order, to which was appended the following certificate:

'I, A. K. Fletcher, clerk of the above named court, do certify that on 17th day of November, 1899, I transmitted to each of the defendants in the above cause a copy of the foregoing order and of the order therein referred to as by the above order directed.

A. K. Fletcher, Clerk.'

It may here be stated that by act of September 25, 1890, the regular terms at Harrisonburg are required to be commenced on the Tuesday after the first Monday in June and December. C. 922, 26 Stat. 474 (U.S. Comp. St. 1901, p. 437).

At the December term, 1899, nothing appears to have been done. At the June term, 1900, a jury was sworn to execute the writ of inquiry, and on June 23, 1900, a verdict was returned finding for the plaintiff in fee simple all the land in this state embraced within the lines as claimed by the plaintiff in the amended declaration. The judgment entered on June 23, 1900, reads, so far as now material, as follows:

'This day came the plaintiff by his counsel, and the defendants not appearing or pleading, the court proceeds to execute the writ of inquiry awarded at rules, and thereupon came a jury. * * *

'And thereupon it is considered by the court that the plaintiff, Henry C. King, recover of the defendants Reese Davis, Ransom Dotson, David Dotson, H. M. France, Archibald Justus, Cyrus Blankenship, Samuel W. McInturf, John Allen, Mary Wolford, Wm. R. Wolford, Levi Wolford, Elijah Estep, Monteville Hunt, Bazil Dotson, and Robert Hurley, and each of them, the land and premises in the declaration and verdict described, to the extent of an estate in fee therein, and that he recover the possession of said premises, together with his costs herein expended, and that the clerk of this court do issue a writ of possession directing the marshal of this court to place the said plaintiff in the possession of said premises.

'June 23, 1900.

John Paul, District Judge.'

It should be here stated that by an order entered December 2 1902, the judgment rendered against Samuel W. McInturf, Mary Woolford, and Wm. R. Woolford was annulled, without resistance by the plaintiff, on the ground that no notice had ever been given these defendants.

Nothing further was done until March 27, 1902, at which time, without any order of court authorizing it, the clerk issued a writ of possession. Before any proper effort to enforce this writ was made, my attention was called to the fact that it had been issued. I thereupon suggested to counsel a belief that the issue of the writ was irregular. This view was apparently acquiesced in by plaintiff's counsel, and no further attempt was made to execute the writ. On March 20, 1903, a writ of scire facias was issued, addressed to Reese Davis Ransom Dotson, David Dotson, H. M. France, Archibald Justus, Cyrus Blankenship, John Allen, Levi Woolford, Elijah Estep, Monteville Hunt, Bazil Dotson, and Robert Hurley, requiring them to appear at the clerk's office at the second April rules, 1903 (April 20th), to show cause why King should not have execution of his judgment against them. Upon the return of this writ, the clerk,...