# Smale v. Mitchell

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United States Supreme Court
143 U.S. 99
Smale v. Mitchell
Action of ejectment by Charles H. Mitchell against Jabez G. Smale, John I. Bennett, Frank I. Bennett, and Conrad N. Jordan. Defendants appealed from an order denying a new trial as of right.
STATEMENT BY MR. JUSTICE FIELD.
The defendant in error, Charles H. Mitchell, as plaintiff, commenced an action of ejectment in a state court of Illinois, to recover certain described premises situated in that state, against Jabez G. Smale and others, which action was afterwards, on sufficient grounds, removed to the circuit court of the United States for the northern district of Illinois. Issue being joined in the action, it was tried by the court without a jury, and upon the facts found judgment was rendered on February 1, 1886, in favor of the plaintiff for a portion of the demanded premises, and in favor of the defendants for the residue. Judgment being entered thereon, the case was brought to this court on a writ of error, and on May 11, 1891, the judgment was reversed, and the cause remanded to the circuit court, with directions to enter judgment for the plaintiff in conformity with the opinion of this court. 140 U.S. 406, 11 Sup. Ct. Rep. 819, 840. According to that opinion, the plaintiff was entitled to recover a greater quantity of land than that described in the judgment reversed. The declaration contained two counts, each describing a portion of the demanded premises, and the opinion directed that a general judgment be entered for the plaintiff for the property described in both counts. The judgment was reversed accordingly, and the cause remanded, with instructions as above mentioned. The mandate of the court issued thereon followed the judgment, and was filed in the court below, June 8, 1891; and that court, in obedience thereto, on the 12th of June following, entered a judgment in favor of the plaintiff for the premises described, and ordered a writ of possession to be issued.
On the following day, June 13, 1891, the defendants moved the court to vacate the judgment thus entered, and to grant them a new trial under the statute of Illinois, all costs of the action having been previously paid; but the court, after hearing argument thereon, denied the motion, and to its ruling the defendants excepted.
To review this ruling the defendants, in September, 1891, sued out a writ of error from the circuit court of appeals for the seventh circuit, returnable in October following, and assigned as error the refusal of the circuit court to vacate the judgment entered on June 12, 1891, and grant a new trial under the statutes of Illinios, the costs having been paid, and the motion made in open court within one year from the rendition of the judgment, and the defendants never having had a new trial in the cause, as provided for by that statute
The case being brought, upon this writ of error, before the circuit court of appeals, was heard on October 5, 1891, and the question arose as to the power of the court below to set aside and vacate the judgment entered on June 12, 1891, pursuant to the mandate and opinion of the supreme court of the United States, and to grant the defendants a new trial, as of course, and simply upon the payment of costs, as provided in the statutes of Illinois relating to the practice in actions of ejectment. The court being advised, it was ordered that the question be certified to the supreme court of the United States, pursuant to the sixth section of the act establishing circuit courts of appeals. 26 St. p. 828.
On the hearing in the circuit court of appeals, the circuit judge did not sit, but the court which made the order was held by the circuit justice and the district judge for the northern district of Illinois, who had been assigned to sit as a member of that court. Upon this certificate the case is now before this court for hearing.
The provisions of the law of Illinois relating to ejectment are contained in sections 34 and 35 of chapter 45 of the Revised Statutes of that state. They are as follows:
'34. Every judgment in the action of ejectment shall be conclusive, as to the title established in such action, upon the party against whom the same is rendered, and against all parties claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named.
'35. At any time within one year after a judgment, either upon default or verdict in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and a new trial granted in the cause. If the costs are paid and the motion therefor is filed in vacation, upon notice thereof being given to the adverse party or his agent or attorney, or the officer having any writ issued upon such judgment, all further proceedings shall be stayed till otherwise ordered by the court. The court, upon subsequent application, made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment and grant another new trial; but not more than two new trials shall be granted to the same party under this section.'
W. C. Goudy and John I. Bennett, for plaintiffs in error.
W. M. Booth, J. S. Harlan, S. S. Gregory, Thomas Dent, and Wm. Prescott, for defendant in error.
[Argument of Counsel from pages 102-104 intentionally omitted]
Mr. Justice FIELD, after stating the case, 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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