Martin Pickett v. Samuel Legerwood

Decision Date01 January 1833
Citation8 L.Ed. 638,32 U.S. 144,7 Pet. 144
PartiesMARTIN PICKETT'S Heirs, Plaintiffs in error, v. SAMUEL LEGERWOOD et al
CourtU.S. Supreme Court

ERROR to the Circuit Court of Kentucky. In the circuit court of Kentucky, at November term 1831, the defendants in error, Samuel Legerwood, Hugh Roseberry, William Henderson, William Mitchell and John Graves filed a petition, stating, that in 1796, a certain Martin Pickett brought his action of ejectment in the district court of the United States of the Kentucky district, against William Mitchell and William Maxwell. That the petitioner, Samuel Legerwood, under whose father and testator, William Legerwood, the said defendants, who were tenants, claimed, was, with the said tenants, made defendant; and in 1798, a judgment was obtained in the said court in favor of Pickett, but no writ of possession was executed in favor of Pickett. The demise in the declaration was laid at ten years, and expired in 1806, and remained dead and inoperative for nearly twenty-five years, when, before the spring term of the court, in 1830, a notice was served by the attorney for the devisees of Martin Pickett, on William Mitchell, that the court would be moved to amend the demise, by inserting a new one; and on the sixth day of the term, he procured an order to be made, inserting a demise of fifty years, without the knowledge of any person interested in the said land, at that time, which ex parte order was not discovered until one year after. That a writ of possession was then, at the time of filing the petition, in the hands of the marshal, and he was about to take possession of the said land.

The petition proceeded to set forth the title under which William Legerwood, the father of Samuel Legerwood, claimed the land, against the title set up by Martin Pickett. That William Mitchell, one of the defendants in the suit, was a tenant of part of the land; that the tract of Legerwood was, several years after the judgment in ejectment, sold, by an execution in favor of the devisees of Pickett, and was bought by Thomas Starke, to whom the sheriff conveyed the same; to whom also William Mitchell, the said defendant, sold out his interest in the land, and moved away nearly one hundred miles from the land; and had not, for many years, been a tenant of it. This fact was alleged to have been well known to the attorney for the devisees of Pickett; and that Mitchell, having no interest in the same, gave no information of the intended motion to the rest of the petitioners, who were terretenants. The petition proceeded to state sundry conveyances and devises of the land under which the parties to the petition all became owners or claimants of the same, or possessors thereof, before the said motion to amend the demise, and the notice of the same William Mitchell.

The petitioners, Henderson, Graves and Rosberry, said, they were exclusive terre-tenants, and, as such, were entitled to notice, even if the judgment was to be revived by scire facias; and that Mitchell had not been a terre-tenant for upwards of ten or twelve years, and had no interest therein. That Samuel Legerwood had never been a terre-tenant, but was entered defendant for those claiming under the title of his deceased father, and that Maxwell had abandoned the possession, and had been dead for many years. The petition prayed the court to award a writ of error coram vobis, to reverse and annul the order extending the demise, and to quash the impending writ of habere facias possessionem; and for such other relief as the case required.

The circuit court ordered an injunction to stay proceedings on the habere facias; and on the 26th November 1831, the following judgment was entered: 'The court being now sufficiently advised of and concerning the premises, do consider, that the plaintiffs' writ of error coram vobis be sustained; that the order extending the demise in the declaration of Seekright, on demise of Pickett, against Mitchell, &c., be set aside, and the habere facias which issued thereon be quashed; and that the plaintiffs recover of the defendants their costs herein expended.'

From this judgment, the plaintiffs in error, on the 28th of November 1831, prosecuted a writ of error to this court. The citation was dated of the 28th November 1831, and required the defendants in error to appear at the January term 1832, of this court. The record brought up by the writ of error, was filed in June 1833.

Loughborough, for the defendants in error, moved to quash the writ of error on the following grounds: 1. Because, although the writ of error was returnable to January term 1832, of this court, the record was not filed until June 1832, the term of January 1832, having thus intervened. 2. Because the proceedings of the circuit court, on the writ of error coram vobis, were not of such a nature as to admit of revision in this court; it being no more than a different form or mode of exercising the power the circuit court had over its acts, and therefore, subject to the rules which this court have established against revising the interlocutory acts or orders of inferior courts.

The motion was opposed by Wickliffe, for the plaintiffs in error.

JOHNSON, Justice, delivered the opinion of the court.

This was a motion to...

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43 cases
  • Lamb v. State
    • United States
    • Florida Supreme Court
    • March 1, 1926
    ... ... See, also, ... McKinney v. Western State Co., 4 Iowa, 420; ... Pickett's Heirs v. Legerwood, 7 Pet. (U. S.) ... 144, 8 L.Ed. 638; Coppock v ... ...
  • King v. Davis
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 25, 1905
    ... ... This conclusion seems to follow ... from what is said in Pickett v. Legerwood, 7 Pet ... 144, 8 L.Ed. 638. In stating the grounds for ... ...
  • United State v. Morgan
    • United States
    • U.S. Supreme Court
    • January 4, 1954
    ...of Pleading, 3d Amer. ed., 142, the procedure by motion in the case is now the accepted American practice. Pickett's Heirs v. Legerwood, 7 Pet. 144, 147, 8 L.Ed. 638; Wetmore v. Karrick, 205 U.S. 141, 151, 27 S.Ct. 434, 436, 51 L.Ed. 745; United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16......
  • Ex Parte Martinez
    • United States
    • Texas Court of Criminal Appeals
    • March 27, 1912
    ... ... Pickett v. Legerwood, 7 Pet. 144 [8 L. Ed. 638]; Strode v. Stafford, 1 Brock. 162 ... ...
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