MARY ANN CONNOR, ALIAS MARY ANN VAN NESS, TENANT, &C., PLAINTIFF IN ERROR,
v.
SAMUEL A. PEUGH'S LESSEE
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In an ejectment action where the tenant in possession failed to appear and become a named defendant within the required time, the Supreme Court held that the tenant could not bring a writ of error challenging the judgment entered against the nominal defendant (casual ejector), as only parties to the suit have the right to appeal, and the tenant's subsequent motion to set aside the judgment and intervene was a discretionary matter not subject to appellate review.
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Mr. Justice GRIER,
delivered the opinion of the court.
Defendant in error moves to dismiss the writ of error in this case. It is an action of ejectnient brought in the circuit court of this district in the usual form, by serving a declaration on the tenant in possession with notice. The declaration and notice were served by the marshal, more, than ten days before March term, 1854. The tenant did not appear and have herself made defendant in place of the casual ejector, according to the exigency of the notice; and at October term a judgment was entered against the casual ejector, in the usual and proper form. On the 5th of June, 1855, the tenant in possession came into court for the first time, and moved to set aside the judgment and execution issued thereon, and to be allowed to defend the suit, for reasons set forth in her affidavit. The court, refused to grant this motion, “ whereupon the said Mary Ann Connor prayed an appeal,” &c. ' .
The tenant in possession having neglected to appear and have herself made defendant, and confess lease, entry, and ouster, the judgment was properly entered against the casual ejector. No one but a party to the suit can bring a writ of error. The tenant having neglected to have herself made such, cannot have a writ of error to the judgment against the casual ejector. The motion afterwards)made to have the judgment set aside, and for leave to intervene, was an application to the sound discretion of the court. To the action of the court on such a motion no appeal lies, nor is it the subject of a bill of exceptions or writ of error. Writ of error dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Credits Commutation Co. v. United States, 177 U.S. 311 (U.S. 1900)…junction point. Prior to that time the questions which they sought to raise by means of the intervening petitions were speculative questions, which the lower court, as we think, very properly, refused to consider or determine.” In Connor v. Peugh, 18 How. 394, it was said by Mr. Justice Grier, giving the opinion of the court: “ On the 5th of June, 1855, the tenant in possession came into court for the first time, and moved to set aside the judgment and execution issued thereon, and to be allowed to defe…
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State of Wash. v. United States, 87 F.2d 421 (9th Cir. 1936)…rari denied 295 U.S. 731, 55 S.Ct. 645, 79 L.Ed. 1680; Demulso Corporation v. Tretolite Co. (C.C.A. 10) 74 F.(2d) 805, 807; Gaines v. Clark, 51 App.D.C. 71, 275 F. 1017,1019. See cases under note 18; Connor v. Peugh’s Lessee, 59 U.S. (18 How.) 394, 15 L.Ed. 432; Ex parte Cutting, 94 U.S. 14, 22, 24 L.Ed. 49; Ex parte Leaf Tobacco Board of Trade, 222 U.S. 578, 581, 32 S.Ct. 833, 56 L.Ed. 323; In re Engelhard & Sons Co., 231 U.S. 646, 34 S.Ct. 258, 58 L.Ed. 416; City of New York v. Consolidated Gas Co., 253…
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Paliaga v. Luckenbach S.S. Co., 301 F.2d 403 (2d Cir. 1962)…F. 2d 909 (9 Cir. 1935) it was stated: “The general rule is that no appeal will lie from an order denying a motion to vacate or modify a judgment, decree, or order. Smith v. U. S. ex rel. Gorlo (C.C.A. [7]), 52 F.(2d) 848; Connor v. Peugh’s Lessee, 18 How. 394, 15 L.Ed. 432; In re Gelino’s, Inc. (C.C.A. [7]), 51 F.(2d) 875; International Bank v. Securities Corp., 59 App.D.C. 72, 32 F.(2d) 968; Painter v. Union Trust Co. (C.C.A. [6]), 246 F. 240; Willis v. Davis (C.C.A. [6]), 184 F. 889; 3 C.J. p. 521 § 53…
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