Connor v. Peugh's Lessee

59 U.S. 394 (1855) 18 How. 394

MARY ANN CONNOR, ALIAS MARY ANN VAN NESS, TENANT, &C., PLAINTIFF IN ERROR,
v.
SAMUEL A. PEUGH'S LESSEE.

Supreme Court of United States.

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 ejectment 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.