Klever v. Seawall

• Decision Date: 14 May 1894
• Docket Number: 150.
• Citation: 65 F. 373
• Parties: KLEVER et al. v. SEAWALL et al.
• Court: U.S. Court of Appeals — Sixth Circuit

65 F. 373

KLEVER et al. v. SEAWALL et al.

No. 150.

United States Court of Appeals, Sixth Circuit.

May 14, 1894

It does not affect the finality of a judgment, as to the time of suing out a writ of error thereon, that the cause of action on which it was rendered was united, in the same petition with other causes of action, which have not yet been finally adjudicated.

The defendants in error, and plaintiffs below, filed their petition in the circuit court for the Southern district of Ohio, Eastern division, seeking to recover from J. M. Klever and Edmund Klever an undivided one-third of a tract of 100 acres in Fayette county, Ohio, in the said district and division. The petition was filed October 7, 1889. It made the necessary allegations of diverse citizenship of the plaintiffs and defendants, averred that the value of the one-third of the tract sued for exceeded $2,000, and asked judgment for $800, as damages for the unlawful detention. The defendants were duly served with summons. J. M. Klever filed an answer August 5, 1890, in which he averred that the one-third of the land described in the petition was of a less value than $2,000, and that the court had no jurisdiction. He denied the title of the plaintiffs. He averred that the tract in question was not owned or possessed in common by himself and his codefendant, but that he himself owned 61 acres in severalty, and his brother and codefendant owned the remainder in severalty; and he therefore pleaded a misjoinder of causes of action. On January 10, 1891, the plaintiffs below, by leave of court, filed an amended petition, in which they repeated the averments of the original petition increasing the amount claimed for damages and rents and profits to $8,000; and, in addition to a prayer for possession of the land and a judgment for $8,000, they added the following: 'They also pray for the partition of said real estate, and that their undivided estate therein may be set off to them in severalty.'

On February 10, 1891, the defendants filed the following motion 'And now come the defendants, and move the court to strike the amended petition of plaintiffs from the files: (1) Because said amended petition states and sets forth other and different causes of action than are set forth in the petition, and is not an amendment to the cause of action in the petition. (2) Said amended petition pretends to set forth a cause of action in equity, while said original petition is an action at law. (3) The amended petition sets forth several different causes of action not contained in the petition. ' This motion the court overruled February 21, 1891, by the following entry: 'This cause came on to be heard on the motion of the defendants to strike the amended petition of the plaintiffs from the files on the grounds therein stated, was argued by counsel, and submitted to the court, on consideration whereof the court finds said motion not well taken, and doth overrule the same, to which defendants except. The defendants are hereby given 30 days in which to answer the amended petition. ' The defendants filed no answer, nor did they ask leave to refile the answer to the original petition as an answer to the amended petition within the 30 days allowed by the foregoing entry. Nothing whatever was done in the case by either party until December 16, 1891, when, upon the application of the plaintiffs, the court gave judgment by default against the defendants, James M. Klever and Edmund Klever. The court found that the said defendants had been duly served with process, and that they were in default for answer or demurrer to the amended petition, and that, from the evidence and exhibits, the allegations of the amended petition were true, and ordered and adjudged that the plaintiffs recover from the said defendants, and each of them, an equal undivided one-third part and interest in the real estate described in the amended petition, and the costs therein expended. The court then proceeded to order partition of the interest adjudged to the plaintiffs and the several interests found to belong to the defendants. In the event of its being impossible to divide the parts of the tract without manifest injury, the commissioners were ordered to value the same in money. It was further considered by the court that plaintiffs recover one-third of the rents and profits of the land from January 10, 1885, to be determined by a special master commissioner. The term of court at which this judgment was entered closed on the day before the 1st Tuesday in June, 1892. A writ of partition issued on this judgment June 16, 1892, and was returned not served. On June 17, 1892, the time for executing the writ was extended from March 15, 1892, the date fixed in the judgment, until October 1, 1892. On June 19, 1892, an alias writ of partition issued. On August 27th, and before this writ was executed, defendants filed a motion to set aside the judgment rendered December 16, 1891. The motion was as follows: 'Now come the defendants, and move the court to vacate and set aside the judgment and decree heretofore rendered and entered in this cause on the 16th day of December, 1891, for the following reason, to wit: Said judgment and decree was irregularly obtained, in this: (1) Said defendants were represented in said cause by counsel who had appeared and assisted in the hearing of a motion and demurrer, and had filed the answers of these defendants to the petition, which said answers were still pending and on file at the time said judgment and decree was taken, and the defenses therein set up unadjudicated by the court; and said judgment and decree was taken and entered without any notice to defendants or their said counsel, although counsel for plaintiffs were well aware and understood that these defendants were represented by counsel, and desired to and were making a defense herein. (2) Said judgment and decree was entered as on default while there were issues made up by the said answers of these defendants to the petition, which these defendants had the right to have tried by a jury. (3) Said judgment and decree was taken and entered as on default for answer while these defendants' said answers were on file and undisposed of. (4) Said judgment and decree was taken as on default for answer to the amended petition filed herein, while said amended petition contained no new matter except a prayer for the partition of said premises in case the title of plaintiffs should be found and established to the one-third part thereof, and the original petition had been and was then fully pleaded to by said answers of defendants, and the issues as to said title of plaintiffs fully made up. These defendants were wholly unaware of the rendition of said judgment and decree until on or about the . . . day of July, 1892. ' This motion was overruled, and the following bill of exceptions was taken, to show the evidence upon which the action of the court was based:

'Be it remembered that on the hearing of the motion to set aside the default and the said judgment of the court rendered thereon on the 16th day of December, 1891, the defendants tendered to the court answers putting in issue all the facts alleged in the amended petition, and offered evidence to show that said judgment was taken without having said cause noted for trial, and without notice to defendants, and that the defendants had no actual notice of said judgment having been taken until a few days prior to the 21st day of July, 1892, when the special master wrote to defendants' attorney of his intention to take testimony on the 21st day of July, 1892, as to rents and profits, which was done on said date. Also, Mills Gardner, attorney for the defendants, stated to the court, professionally, in explanation of the fact that no answer to the amended petition had been filed, that he, as attorney for the defendants, relied on the original answer of the defendants to the petition as putting in issue all the statements and allegations of the amended petition, and deemed no further answer on behalf of the defendants necessary for the putting in issue of the question of the ownership and right of possession of plaintiffs in and to the real estate described in the petition, and for those reasons he, on behalf of the defendants, filed no further answers, nothing of which so stated, however, he had communicated to the plaintiffs or their attorneys. That he, as attorney for said defendants, had no actual notice, knowledge, or information that said judgment was to be or had been taken till a few days prior to the 21st day of July, as aforesaid. It appeared to and was further found by the court that by the rules of practice in the circuit court of the United States for the Southern district of Ohio, no cases can be or should be noted for trial except when at issue, and that no notice of any kind to the adverse party is required in taking default judgment. And this was all the evidence offered by either party. And the court having overruled said motion of the defendants, and refused to set aside default judgment, and permit defendants to plead further to said amended petition, the defendants duly excepted to said ruling and decision of the court at the time, and tender this, their bill of exceptions, which is allowed, signed, sealed, and ordered to be made part of the record.

'(Seal.)

George R. Sage, U.S. District Judge,

'Sitting in and Holding the Circuit Court in the Above-Entitled Cause.'

The commissioners made return of their doings on October 27 1892. In their report they say, among other things: 'As there had been no recent survey of the lands, we employed a competent surveyor, as by said decree we were authorized to do; and our partition is based on the amount of land in each of said...