# Doe on the Demise of John Elmore v. Beatie

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United States Supreme Court
26 U.S. 469
Doe on the Demise of John Elmore v. Beatie
AN action of ejectment was instituted in the Circuit Court of the United States for the District of Georgia, for the recovery of 287 1/2 acres of land, in which the plaintiffs claimed title as follows: A grant from the state of Georgia to Samuel Alexander: and a deed from John Cessna, styling himself 'Sheriff of Greene county in the state of Georgia,' purporting to convey to Buckner Harris, by virtue of a sale under an execution against Herod Gibbs, 'two hundred and eighty-seven and a half acres of land in said county, on Little Beaver Dam, on the waters of Richland creek, and bounded on Academy lands, and land belonging to William Alexander, which land was formerly the property of Samuel Alexander:' a deed from Buckner Harris to Ezekiel E. Park, for a tract of land 'containing two hundred and eighty-seven and a half acres, in the county of Greene, and state of Georgia, on the Little Beaver Dam of Richland creek; being an equal half of the double bounty of land granted to Samuel Alexander, adjoining Academy lands.'
The plaintiff then introduced a witness, who testified that 'Ezekiel Park was in possession of a tract of land lying in Greene county, usually called Park's old mill tract, on Beaver Dam creek, for about twenty years.' He then produced a deed from Ezekiel E. Park to John A. Elmore, for a tract of land 'in the county of Greene, and state of Georgia, on the Little Beaver Dam creek, or fork of Richland creek, being one equal half of a double bounty tract, originally granted to Samuel Alexander, adjoining lands belonging to the University; being the same originally sold and conveyed to Herod Gibbs, by the grantee, on the 14th of March, 1790.' He then exhibited a deposition of the county surveyor, stating that he had made a re-survey of the premises in dispute, agreeably to a plot annexed to his deposition, which corresponded in its outlines with that annexed to the original grant, 'completely covering the premises in dispute;' which he designated on the plat.
The plaintiff then called a witness, who testified that W. A. Grymes was in possession of the premises at the commencement of the action, and then closed his testimony.
The defendant's counsel, thereupon, moved for a nonsuit, on the following grounds:
1st. Because the plaintiff had failed to make out his title by the documentary evidence on which he rested his case.
2d. Because there was no sufficient evidence of possession, to give a title, under and by force of the statute of limitations of Georgia.
The Circuit Court ordered a nonsuit to be entered, against the consent of the plaintiff; and a writ of error was prosecuted by him, and the cause brought before this Court.
Upon the judgment of nonsuit, the defendants in error claimed to maintain before the Court—
That the Circuit Court had power to order a nonsuit, without the assent of the plaintiff.
The case was argued by Mr. Wild and Mr. M'Duffie for the plaintiff in error, and by Mr. Berrien for the defendant.
Mr. Berrien.--
The doctrine laid down in the books of practice, and adopted in some of the state Courts, is not supported by any express decision in the Courts of Great Britain. That proposition is, that a plaintiff, on the bare allegations of his declaration, without a title of proof, is entitled to demand the verdict of a jury in his cause.
Any modification of this proposition admits the power, and objects only to the mode of its exercise. An examination of the adjudged cases in England will show that they do not warrant the position. Watkins vs. Towers, 2 T. R. 275, was a motion to enter nonsuit after verdict.
Santler vs. Heard, was a verdict taken subject to the opinion of the Court, whether plaintiff ought not to have been nonsuited. 2 Bl. Rep. 1031. 2 Salk. 669.
Macbeth vs. Haldermand, 1 T. R. 172. The point was not made, on a motion for a new trial. On reporting the fact, Buller J. said, that on the trial, he had though the plaintiff ought to be nonsuited; but his counsel appearing, when plaintiff was called, he had left the question to the jury. It is said-that the plaintiff would be deprived of his writ of error to this Court. This is not so.
Final judgments spoken of in the judicial Act, are meant to be contradistinguished from interlocutory judgments.
Any judgment which is final in the suit, though not final, as between the parties, with the exceptions mentioned in the Act, may be brought here by writ of error.
A judgment of nonsuit is such a judgment, and may be the foundation of a writ of error. The defendant is entitled to judgment and execution for costs. The suit is finally disposed of. It is a final judgment in a civil action. In England, error lies on such a judgment. Box vs. Bennet, 1 H. Bl. 432, Kempland vs. Macauley, 4 T. R. 436. Evans vs. Phillips, 4 Wheat. 73, does not contradict this. The grounds of that decision was that the plaintiff had assented to the nonsuit. Why may not the errors of the Court below, be corrected in this form, as well as by an exception to instructions, or the refusal to give them.
Mr. Wilde and Mr. M'Duffie, for the plaintiff in error.--
1. It has always been considered that a nonsuit cannot be ordered without the consent of the plaintiff, who has a right to submit his case to a jury and the Court; and the Court, should the jury err, may order a new trial.
In the Courts of the United States, another obligation exists to the exercise of such a power, as the Court has decided that a writ of error will not lie on a judgment of nonsuit; (Evans vs. Phillips, 73,) it not being a final judgment. If the Courts below should have this power, a plaintiff may be prevented the opportunity of bringing his case before the highest judicial tribunal of the United States. If a Court, can in any instance order a nonsuit against the consent of the plaintiff, it may only be when no questions of facts are involved, but the only matter before the Court is a question of law. This case exhibits facts upon which a jury were the proper judges. The plaintiff claimed the land by possession, this, and the extent of the possession, was exclusively for the consideration of the jury.
The practice of the state of Georgia as to the entry of nonsuits, has been fluctuating. The judicial system of that state does not comprehend an appellate Court, with exclusive final judicial powers, but each Circuit Court has a right of granting appeals to itself, and on such appeals a second trial takes place. Hence, this point has been decided differently in different Courts, and at different periods; and hence the practice of the Courts of Georgia is unsettled, and as various, as it necessarily must be, in the absence of a Supreme Court to regulate and determine the same.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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