# Kearney v. Denn

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United States Supreme Court
82 U.S. 51
Kearney v. Denn
ERROR to the Circuit Court for the District of Maryland; the case being thus:
Dr. David Crawford, of Prince George's County, Maryland, died there in 1859, a bachelor, leaving a large personal and real estate, but neither father or mother, brother or sister, or the descendants of either to inherit it. A first cousin named Blackburne, who was in possession of his realty, applied for administration on the personalty. A counter application was made by one George T. Crawford, of Maryland, son of Thomas B. Crawford, a brother of the intestate, who had died before him. The application of George T. Crawford was opposed by Blackburne, on the ground that he, the said George, was not a legitimate child of the said Thomas; but with three other children, his illegitimate offspring from a connection with one Elizabeth Taylor.
Thereupon the Orphans' Court of Prince George's County, where the application of both parties was made and the contest was pending, directed an issue to settle the question,
'Whether the said Thomas was ever lawfully married to Elizabeth Taylor, either before or after the birth of the said George.'
The jury found a verdict against the legitimacy; and judgment was entered accordingly; a judgment afterwards affirmed in the Court of Appeals of Maryland.
In this state of things George T. Crawford, who had lost the administration, and his three sisters, all of Maryland, brought ejectment in the court below against Blackburne for the real estate. On that trial Blackburne offered in evidence as proof of the illegitimacy of the plaintiffs, a transcript of the record of the Orphans' Court of Prince George's County, on the application for administeration, and the Circuit Court rejected it. Verdict and judgment having been given for the Crawfords, the defendant, Blackburne, brought the case here on error, where the ruling was declared to have been in part erroneous. This court then said:
'The transcript was competent evidence against George T. Crawford. As to him it was an estoppel and barred his right of action. But it did not affect the other defendants in error, who were not parties to the proceedings.'
The judgment was accordingly reversed, and a venire de novo ordered.
George T. Crawford, one of the plaintiffs, now died. He had children, but they were not made parties to the case; which went on in the names of the other plaintiffs. After some continuances and before the case came on to be retried, the attorneys of the plaintiffs suggested to the court, that since the last continuance, Blackburne, the defendant, had died, and they, therefore, moved for leave, which was granted, to let new parties, to wit, Mary Kearney, and J. L. Henry, and Kate Kearney Henry, his wife (nothing being said about their citizenship), appear and defend; these three persons, as was admitted by an agreement of counsel on both sides, filed, being 'alone interested as defendants;' and it being further agreed by the counsel that 'the original pleadings shall stand mutatis mutandis.'
The cause was then continued till the next term, when the defendants filed a motion in writing to dismiss the case, for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J. L. Henry, and Kate Kearney Henry, his wife, had been during the same period, citizens and residents of the State of Maryland, and that the court had, therefore, no jurisdiction to hear and decide the cause. No proof appeared to have been offered of these facts. The court overruled the motion, but upon what ground did not appear. It was noted on the record that the defendants 'reserve their exception to the decision of the court.' This was all that the record contains on the matter.
The cause was then afterwards tried on its merits, when the defendants offered a transcript of the record of the Orphans' Court to show the illegitimacy of all the new plaintiffs, the sisters of George T. Crawford as well as of himself The court below refused to receive it, and the defendants excepted. Verdict and judgment having again gone for the plaintiffs the defendants brought the case here, the two questions now being,
1st. Had the court below jurisdiction; in other words was the suit after the substitution of the new defendants an original suit, or merely a continuation of the old one?
2d. Was the rejection of the transcript of the record of the Orphans' Court, which had been offered to show the illegitimacy of the now plaintiffs, the sisters of George T. Crawford, rightly rejected?
Mr. T. J. Durant, for the plaintiff in error; a brief of the late Mr. William Schley having been filed:
1. That new defendants, when they appeared to the suit, did not come in under Blackburne, as successors to his rights; but came in professing to be next of kin and heirs of the intestate, Dr. David Crawford. In some senses it was a right adverse to Blackburne's.
Now if, on the day when these new defendants appeared to this suit, an original suit had been begun against them by the plaintiffs in that suit, the Circuit Court would have had no jurisdiction; because all the plaintiffs and two of the defendants are citizens of Maryland, and the other defendant is a citizen of the District of Columbia.
But the court below disposed of the motion by the remark, that the question of jurisdiction related to the state of case which existed at the commencement of the suit. This supposed rule, however, is not sanctioned by the decisions of this court; it is qualified by the condition that the parties remain the same. Subsequent change of domicile does not, per se, take away jurisdiction rightfully acquired.*
2. The transcript of the record of the Orphans' Court should have been admitted, for the sisters of G. T. Crawford were virtually parties to the suit in the Orphans' Court in which he claimed the administration. The same right was in question in the two cases.
In addition, the verdict and judgment in the record offered in evidence was directly upon the status of the immediate ancestor of all the plaintiffs in this suit.
Messrs. T. T. Crittenden (with whom had been the late Mr. R. J. Brent) and D. Clarke, contra.
Mr. Justice SWAYNE recapitulated certain parts of the case and delivered the opinion of the court.

## Notes

* Blackburne v. Crawfords, 3 Wallace, 190.
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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