Rexford v. Co

Decision Date14 April 1913
Docket NumberBRUNSWICK-BALKE-COLLENDER,No. 188,188
Citation228 U.S. 339,33 S.Ct. 515,57 L.Ed. 864
PartiesC. H. REXFORD, Petitioner. v. CO
CourtU.S. Supreme Court

Messrs. Julius C. Martin for petitioner.

Messrs. James H. Merrimon, S. W. Black, and T. D. Bryson for respondent.

Mr. Justice Van Devanter delivered the opinion of the court:

This was a suit by the owner of a large body of lands in two counties in North Carolina, to cancel certain deeds under which the defendant was claiming several thousand growing trees on the lands, to enjoin the defendant from entering on the premises and cutting or interfering with any of the trees thereon, and to recover damages for trees alleged to have been wrongfully cut and removed before the suit. The bill charged, in effect, that the deeds were utterly void; that if they were not originally void, all rights under them had been exhausted by the felling and removal of all the trees covered by them; and that, if those rights had not been thus exhausted, they had been lost by abandonment and lapse of time. The answer asserted the validity of the deeds, alleged that such cutting and removal as occurred prior to the suit was done in the lawful exercise of the rights acquired under the deeds, denied that those rights had been lost by abandonment, lapse of time, or otherwise, and asserted that most of the trees covered by the deeds were still standing, and the defendant was entitled to cut and remove them without any restriction in point of time. It appeared from the pleadings that the deeds had been executed twenty-four years before the suit, and did not purport to cover all the trees, but only a designated number of pine and poplar trees 2 feet in diameter at the butt, all marked with the letter 'L.' After the issues were framed, the circuit court, with the acquiescence of the parties, entered the following order:

'And it appearing to the court that the rights of the defendant in this action depend primarily on several questions of law based on documentary evidence of its title to the trees in question;

'And it further appearing to the court that it would facilitate the hearing of said cause if such documentary evidence were offered and such preliminary question of title first disposed of by the court;

'Now, therefore, it is ordered that these questions of law and the documentary evidence bearing thereon be first presented to the court for argument, and all questions of fact in this cause be held in abeyance until said preliminary questions are disposed of by the court.'

A partial hearing pursuant to that order resulted in the rendition of a decree to the effect that through the deeds in question the defendant acquired an absolute and indefeasible title in fee simple to the trees therein described, as also a right of ingress and egress for the purpose of cutting and removing them; and that under a proper construction of the deeds the defendant was not restricted to a reasonable time within which to fell and remove the trees, but was entitled to do so whenever it chose. The decree concluded: 'And this cause is retained for further orders.' Shortly thereafter an order was entered reciting that 'there is much other proof touching the matters in issue necessary to be heard, looking to a final judgment,' and appointing a special master 'to take proofs of all and singular the issues herein (except the evidence in the cause heretofore heard by this court), especially to take evidence concerning the identity of certain marked trees described in the pleadings, and to report the number and identity of such trees, and to ascertain and report his findings to this court.'

Without awaiting the incoming of the report of the special master, or the action of the court thereon, the plaintiff prayed and was allowed an appeal from the decree before described to the circuit court of appeals, and the decree was there affirmed. 104 C. C. A. 210, 181 Fed. 462. The plaintiff then petitioned this court for a writ of certiorari, which was allowed.

The first question that claims our attention is whether one of the judges who sat at the hearing in the circuit court of appeals was disqualified under the statutory provision (26 Stat. at L. 826, chap. 517, § 3, U. S. Comp. Stat. 1901, p. 548) which declares 'that no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals.' The facts bearing on this question are these: The suit was begun in a state court, and was removed to the circuit court by the defendant on the ground of diverse citizenship. The amount in controversy and the citizenship of the parties were concededly such as to admit of the removal, but the plaintiff, conceiving that the right of removal was not seasonably asserted, moved on that ground alone that the suit be remanded to the state court. The motion was denied, and the plaintiff excepted. When the cause came on for hearing in the circuit court of appeals the district judge, who had heard and denied the motion to remand (but had done nothing else in the case), was sitting as one of the judges of that court in virtue of an assignment under the court of appeals act. Counsel for the plaintiff thereupon suggested the question whether the district judge was disqualified to sit on the hearing of the appeal, and the court inquired whether the objection to the removal would be insisted upon. Counsel for the plaintiff answered that 'it would not,' and that he 'believed the case had been properly removed.' The hearing then proceeded, the district judge sitting as one of the judges and participating in the decision, which made no mention of the objection to the removal, doubtless because...

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  • Libbey-Owens-Ford Glass Co. v. Sylvania Indust. Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 3, 1946
    ...the adoption of the new civil rules, United States v. Continental Casualty Co., 2 Cir., 69 F.2d 107; Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864, and since, United States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105, reversing (and restoring t......
  • United States v. 243.22 Acres of Land, 349.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 26, 1942
    ...with such distribution as might be ordered when the sale was confirmed. A similar decision was made in Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L. Ed. 864, where, in a suit to cancel deeds to growing timber and to enjoin defendant from cutting the same, the d......
  • Ex parte State ex rel. Ala. Policy Inst., 1140460.
    • United States
    • Supreme Court of Alabama
    • March 3, 2015
    ...declined to vote in this case when my administrative order was potentially under review. Compare Rexford v. Brunswick–Balke–Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864 (1913) (construing federal law and noting that an appellate judge should not pass upon "the propriety, scope, o......
  • Okrie v. State
    • United States
    • Court of Appeal of Michigan (US)
    • August 19, 2014
    ...that practice has not been accepted for more than a century. See, e.g., 306 Mich.App. 471Rexford v. Brunswick–Balke–Collender Co., 228 U.S. 339, 343–344, 33 S.Ct. 515, 57 L.Ed. 864 (1913) (ruling that the appellate court should have judges who did not previously rule on the case). In additi......
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