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diction once lost can only be regained by judgment is set up against him in another some proper notice, the case at bar is an forum. illustration that such action may impair We find nothing in any decision of this the substantial right of a party to be heard court which sanctions any different proagainst the rendition of a new judgment cedure, and the cases in the state courts against him. Had notice been given, the which hold that notice is necessary after defendant could have availed himself of his the term before a judgment can be set aside right to plead his discharge in bankruptcy are numerous. Some of them will be found by proper proceedings for that purpose. in the note in the margin.t Loveland, Bankr. 783. It may be that he did To sanction a proceeding rendering a not lose all right to avail himself of the new judgment without notice at a subsedischarge in some other manner, but he had quent term, and hold that it is a judgment the right to show that, in view of his dis- rendered with jurisdiction, and binding charge, the judgment in question ought not when set up elsewhere, would be to violate to be rendered against him.

the fundamental principles of due process In Capen v. Stoughton, 16 Gray, 364, of law as we understand them, and do cited by plaintiff in error, a sheriff's jury in violence to that requirement of every system condemnation proceedings by mistake signed of enlightened jurisprudence which judges a verdict in favor of the municipal corpo after it hears, and condemns only after a ration instead of the property owners. The party has had an opportunity to present his court held this a mistake of a merely formal defense. By the amendment and new judgand clerical kind; and “when no action has ment the proceedings are given an effect been taken on an order or judgment, and against the defendant in error which they the rights of parties to the proceeding or did not have when he was discharged from those of third persons cannot be affected them by the judgment of disinissal. By unjustly by the correction of an error, the the judgment of dismissal the court lost court has power to order an action to be jurisdiction of the cause and of the person brought forward and a judgment to be of the defendant. A new judgment in vacated in order that an entry may be personam could not be rendered against the made in conformity with the truth."

defendant until, by voluntary appearance or There is no suggestion that such action due service of process, the court had again can be "brought forward” without notice acquired jurisdiction over him. As a matter to the adverse party, or a correction made of common right, before such action could where, as in the present case, the party has be taken he should have an opportunity to lost a valuable right in reliance upon a judg. be heard and present objections to the renment of dismissal.

dition of a new judgment, if such existed. And if it be held that the mistake in this We find no error in the judgment of the case, though not of the clerk, was of a Court of Appeals overruling the demurrer clerical character, and within the rule per- to the second plea, and the same is affirmed. mitting the correction of such mistakes by the court, a point unnecessary to decide in Mr. Justice Brewer took no part in this this case, such a correction cannot be made case. after term without notice, certainly where the changed condition of the parties in view

THOMAS R. MARTIN, Piff. in Err., of a ņew right acquired would render it prejudicial to render a new judgment.

DISTRICT OF COLUMBIA. (No. 190.)

MIBIA. The plaintiff in error also relies upon the proposition that the Massachusetts statute | CLARENCE A. BRANDENBURG, Piff. in (Revised Laws of Massachusetts, chap. 193,

Err.,

V. § 22) provides that if a judgment is ren

DISTRICT OF COLUMBIA. (No. 191.) dered in the absence of the petitioner, and without his knowledge, a writ of review Public improvements — assessments - benemay be granted upon petition filed within fits. one year after the petitioner first had notice The apportionment of the cost of widen. of the judgment; otherwise, within one year

†Murphy v. Farr, 11 N. J. L. 186; Martin after the judgment was rendered. But we

v. Bank of State, 20 Ark. 636; De Witt v. cannot agree that this remedy supplied the Monroe, 20 Tex. 289; Berthold v. Fox, 21 want of jurisdiction in the Massachusetts Minn. 51; Cobb v. Wood, 8 N. C. (1 Hawks) court to render, after the term and without 95; Hill v. Hoover, 5 Wis. 386, 68 Am. Dec. notice, a new and different judgment against 70; Perkins v. Hayward, 132'Ind. 95, 100,

; the defendant in error. Whatever his

Keeney v. Lyon, 21 Iowa, 277; Weed v. re.nedy may be in the state courts, want of Weed, 25 Conn. 337; Fischesser v. Thompjurisdiction may be pleaded wherever the son, 45 Ga. 459, 467.

V.

)

ing an alley in the city of Washington / estate and also is to "apportion an amount upon the property lying within the square equal to the amount of said damages so through which such alley runs must be ascertained and appraised as aforesaid," limited to benefits, where the jury of award, including fixed pay for the marshal and although directed by the act of July 22, jury, “according as each lot or part of lot 1892 (27 Stat. at L. 255, chap. 230), amended by the act of August 24, 1894 (28 of land in such square may be benefited Stat. at L. 501, chap. 328), to apportion an by the opening, widening, extending, or amount equal to the damages ascertained straightening such alley," with certain deand appraised, is to apportion such amount ductions.

ductions. The amendment authorizes the "according as each lot or part of lot in such commissioners to open minor streets, to run square may be benefited."

through a square, etc., whenever, in the

judgment of said commissioners, the public [Nos. 190, 191.]

interests require it.

The law is not a legislative adjudication Argued January 29, 1907. Decided March concerning a particular place and a particu11, 1907.

lar plan, like the one before the court in I N ERROR to the Court of Appeals of the Wight v. Davidson, 181 U. S. 371, 45 L. ed. District of Columbia to review judgments

900, 21 Sup. Ct. Rep. 616. It is a general affirming judgments of the Supreme Court prospective law. The charges in all cases of thať District, quashing writs of cer- taxing district of a square, and therefore

are to be apportioned within the limited tiorari to test the validity of assessments it well may happen, it is argued, that they for the widening of an alley in the city of exceed the benefit conferred, in some case Washington. Reversed.

of which Congress never thought and upon See same case below, No. 190, 26 App. D. which it could not have passed. The presC. 146; No. 191, 26 App. D. C. 140.

ent is said to be a flagrant instance of that The facts are stated in the opinion.

sort. If this be true, perhaps the objection Messrs. Edwin C. Brandenburg, George E. to the act would not be disposed of by the Sullivan, and Clarence A. Brandenburg for

decision in Louisville & N. R. Co. v. Barber plaintiffs in error.

Asphalt Paving Co. 197 U. S. 430, 49 L. Messrs. Francis H. Stephens and Edward ed. 819, 25 Sup. Ct. Rep. 466. That case H. Thomas for defendant in error.

dealt with the same objection, to be sure,

in point of form, but a very different one Mr. Justice Holmes delivered the opinion in point of substance. The assessment in of the court:

question there was an assessment for gradThese are writs of certiorari to test the ing and paving, and it was pointed out that validity of assessments for the widening of

a legislature would be warranted in assuman alley in Washington under the act of ing that grading and paving streets in a Congress of July 22, 1892, chap. 230 (27 good-sized city commonly would benefit ad- . Stat. at L. 255), as amended by the act of joining land more than it would cost. The August 24, 1894, chap. 328 (28 Stat. at L. chance of the cost being greater than the 501). The writs were quashed by the su- benefit is slight, and the excess, if any, preme court of the District and the judg. would be small. These and other consideraments affirmed by the court of appeals. 26 tions were thought to outweigh a merely App. D. C. 140, 146. The principal case is logical or mathematical possibility on the that of Brandenburg, the owner of land other side, and to warrant sustaining an taken for the widening. That of Martin

old and familiar method of taxation. It raises questions as to the rights of a mort

was emphasized that there should not be gagee of the same land. The main issue is extracted from the very general language upon the constitutionality of the act. The of the 14th Amendment, a system of delustatute authorizes the commissioners of the sive exactness and merely logical form. District to condemn, open, widen, etc., alleys

But when the chance of the cost exceed. upon the presentation to them of a plat of ing the benefit grows large, and the amount the same accompanied by a petition of the of the not improbable excess is great, it owners of more than one half of the real

may not follow that the case last cited will estate in the square in which such alley is be à precedent. Constitutional rights like sought to be opened, etc., or in certain other others are matters of degree. To illustrate: cases. After prescribed preliminaries the Under the police power, in its strict sense, commissioners are to apply to the marshal

a certain limit might be set to the height of the District to impanel a jury of twelve of buildings without compensation; but to disinterested citizens, and the marshal is make that limit 5 feet would require compen- . to impanel them, first giving ten days' no-sation and a taking by eminent domain. tice to each proprietor of land in the square. So it well might be that a form of assessThe jury is to appraise the damages to realment that would be valid for paving would not be valid for the more serious expenses at the most, to the remaining portions, beinvolved in the taking of land. Such a fore the improvement was made. These distinction was relied on in French v. Bar- lots were assessed $650 less said $92, or ber Asphalt Paving Co. 181 U. S. 324, 344, $558, and $550 less said $75, or $475. It 45 L. ed. 879, 889, 21 Sup. Ct. Rep. 625, to is most improbable that the widening of reconcile the decision in that case with Nor- an alley could have nearly trebled the value wood v. Baker, 172 U. S. 269, 43 L. ed. 443, of each lot. We think it apparent, as was 19 Sup. Ct. Rep. 187.

assumed by the court of appeals, that the And yet it is evident that the act of jury understood their duty to be to divide Congress under consideration is very like the whole cost among the landowners, earlier acts that have been sustained. That whether the benefit was equal to their passed upon in Wight v. Davidson, it is share of the cost or not. It must be adtrue, dealt with a special tract, and so re- mitted that the language of the statute quired the hypothesis of a legislative de- more or less lent itself to that understandtermination as to the amount of benefit ing. There is nothing in the record sufficonferred. But the real ground of the cient to show that the jury took a differdecision is shown by the citation (181 U. S. ent view, or that they limited the assess378, 379, 45 L. ed. 904, 21 Sup. Ct. Rep. ment to the benefit actually conferred on 616) of Bauman v. Ross, 167 U. S. 548, these lots. For this reason the assessment 42 L. ed. 270, 17 Sup. Ct. Rep. 966, when the must be quashed, and it will not be necessame principle was sustained in a general sary to consider the special objections of law. 167 U. S. 589, 590, 42 L. ed. 288, 17 the mortgagee. Sup. Ct. Rep. 966. It is true again that in Judgments reversed. Bauman v. Ross the land benefited was to be ascertained by the jury instead of being Mr. Justice Harlan, Mr. Justice White, limited by the statute to a square; but and Mr. Justice McKenna concur in the it was none the less possible that the sum judgment. charged might exceed the gain. As only half the cost was charged in that case it may be that, on the practical distinction to NORTHERN PACIFIC RAILWAY COMwhich we have adverted in connection with PANY, John A. Miller and Anna Miller, Louisville & N. R. Co. v. Barber Asphalt His Wife, and Washington Grain & MillPaving Co. the danger of such an excess ing Company, Plffs. in Err., was so little that it might be neglected, but the decision was not put on that ground.

JACOB SLAGHT. In view of the decisions to which we have referred it would be unfortunate if the Judgment-res judicata.

1. A decree rendered on demurrer, dispresent act should be declared unconstitu: missing, on the merits, a suit to establish a tional after it has stood so long. We think trust in certain lands in favor of a railway that without a violent construction of the company, which set up, as a basis of its statute it may be read in such a way as not alleged title in fee simple, the railroad land to raise the difficult question with which we grant act of July 2, 1864 (13 Stat. at L. 365, have been concerned. It is true that the chap. 217), prevents the successor in interjury is to apportion an amount equal to est of such railway company from asserting, the amount of the damage ascertained, but in an action of ejectment involving the same it is to apportion it "according as each lot property, brought by the defendant in the

former suit, that such company had acor part of lot of land in such square may quired title under the act of March 3. 1875 be benefited by the opening, etc.” Very (18 Stat. at L. 482, chap. 152, U. S. Comp. likely it was thought that in general, hav- Stat. 1901, p. 1568), or under the state stating regard to the shortness of the alleys, ute of limitations. the benefits would be greater than the cost. Limitation of actions—when statute begins But the words quoted permit, if they do

to run. not require, the interpretation that in any

2. A state statute of limitations for the event the apportionment is to be limited recovery of real property does not begin to the benefit, and if it is so limited all to run in favor of a railway company as serious doubt as to the validity of the against a settler under the homestead laws statute disappears.

of the United States until patent has issued. * It is clear, however, from the petitions

[No. 152.] and the returns that the jury did not administer the statute in the way in which Argued and submitted January 11, 1907. Dewe have determined that it should be read.

cided March 11, 1907. About one fifth of each lot was taken, and

V.

wast valued at $92 aand $753 Tespectively

: I SERROR to the fupreme Court of the

State of a

*Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, $ 223.

ment which affirmed a judgment of the Su-, an. Defendant in error established his resperior Court in and for the County of Whit-idence upon the land in 1883. man, in that state, in favor of plaintiff in In 1886 and the first half of 1887 the an action of ejectment. Affirmed.

Spokane & Palouse Railway Company conSee same case below, 39 Wash. 576, 81 structed and completed, at great expense, Pac. 1062.

a railroad over lots 10 and 11, conforming The facts are stated in the opinion. to the survey previously made and staked

Messrs. Charles W. Bunn and James B. out, and from and after its completion it Kerr for plaintiffs in error.

was operated daily and continuously in the Messrs. U. L. Ettinger, Thomas Neill, carrying of freight, passengers, and mail. and W. E. McCroskey for defendant in er. The right of way claimed was 100 feet wide ror.

on either side of the main line of railroad.

It would be possible for plaintiff in error, Mr. Justice McKenna delivered the opin- who is the successor of the Spokane comion of the court:

pany, to carry freight, passengers, and mail This is an action of ejectment brought by over a right of way not exceeding 25 feet defendant in error against plaintiffs in error in width, and a space of 100 feet square in the superior court in and for the county would permit of the erection of a depot at of Whitman, state of Washington, for land the town of Palouse. But great inconvensituate in the town of Palouse.

ience would result to the citizens of that The trial court adjudged defendant in er- town and vicinity and the railway company. ror the owner in fee simple of the land For the convenient, prompt, and expeditious sued for, and that the plaintiffs in error handling of freight and the erection of elewere in the possession and occupation of vators for storing grain and wheat a right the portions thereof described in their an- of way of 200 feet is necessary. At the swers against the will and consent of the time the railroad was surveyed and conplaintiff (defendant in error), and were oc- structed defendant in error resided upon cupying and in possession thereof without said lands and knew of its construction and right, except that the Northern Pacific the expenditure of large sums of money Railway Company, as a public carrier, had therefor. About the time of the survey he a right to hold the possession of a strip published a notice in the Palouse News, a of land 25 feet wide, “being 1212 feet on newspaper published in the vicinity of the each side of the center line between the land, forbidding all persons from trespass. rails of its main track over and across said ing thereon. This is the only objection he land, and also a tract 100 feet square.” made. In the month of August, 1887, the This tract was described. Defendant in er- Northern Pacific Railroad Company, claim. ror was adjudged entitled to recover "all ing to be the owner of lots 10 and 11, the rest of the land described in the amend conveyed the same to William S. Powers, ed complaint.” And that a writ issue to put and he, on the 14th of September of the him in possession thereof, but not until same year, conveyed to the Spokane & ninety days from the date of the judgment, Palouse Railway Company a right of way and, if an appeal should be taken and pro- 200 feet wide over lots 10 and 11, being ceedings stayed, then not until ninety days the same then claimed by that company and from the time the remittitur from the su- now claimed by plaintiff in error, the preme court affirming the judgment should Northern Pacific Railroad Company. On be filed; and if, in the meantime, the railway the 12th of May, 1897, the Spokane & Pacompany should commence proceeding in the louse Railway Company, Powers, and others, proper court to condemn the land claimed by as successors in interest of Powers under it and described in its answer, for railroad the above deed of conveyance from the purposes, then said writ should not be is. Northern Pacific Railroad Company, brought sued as to such land as it might seek to a suit against the defendant in error which condemn, unless the company should after will hereafter be referred to and described. wards dismiss such proceedings or fail to The complaint was amended. The date of prosecute the same to final judgment and its filing as amended does not appear. It pay the award that might be made therein. was sworn to February 19, 1898. A deThe supreme court affirmed the judgment. murrer to the amended complaint was sus39 Wash. 576, 81 Pac. 1062.

tained and, the plaintiffs declining to plead The facts, as far as necessary to be further, a judgment was entered June 24, stated, are that after proceedings in the 1898, dismissing the suit. The judgment land office, to which the railway company was affirmed successively by the supreme was a party, a homestead patent was is court of the state and by this court. No sued to defendant in error April 20, 1897, suit of any kind was commenced by defendto lots 10, 11, 14, and 15 of section 1, town- ant in error to enjoin the construction of, ship 16 N., range 45 E., Willamette meridi-l or the maintenance of, said railroad over said right of way, except the suit at bar, , with great particularity. It was averred which was brought shortly after the deci- that the Spokane & Palouse Railway Comsion of this court above mentioned. The pany and other

The pany and other plaintiffs asserted and summons was served on the Northern Pacific claimed title to certain portions of the land Railway Company on the 9th of October, under and by virtue of certain instruments 1901, and the complaint was filed on the duly made and delivered by Powers and his 4th of June, 1902.

grantees. And it was also averred that The Spokane & Palouse Railway Company the questions involved were of common and conveyed the right of way in controversy general interest to many persons whom it and all of its property on the 21st of Febru- was impracticable to make parties, and that ary, 1899, to the Northern Pacific Railway such persons and the plaintiffs were the Company, which has ever since maintained owners in fee simple and had an indefeasible and operated said road from Spokane, title, and were in possession of lots 10, 11, Washington, to Lewiston, Idaho, and in- 14, and 15 of section 1, township 16 N., tervening points.

range 45 E., Willamette meridian, and that The Northern Pacific Railway Company Slaght claimed an interest or estate there. (we shall follow counsel's example and in adverse to the plaintiffs, which claim treat the Northern Pacific Railway Com- was without any right whatever and that pany as the sole plaintiff in error, the in- he had no estate, right, title, or interest dividuals named being its lessees) assigns whatever in the land or any part thereof. as error in its brief the ruling of the su- And it was averred that he threatened to preme court of the state, that the company commence suits in ejectment, and, with"had no right of way under the act of Con- out suit, forcibly to dispossess and eject gress of March 3, 1875" (18 Stat. at L. plaintiffs from said premises or a portion 482, chap. 152, U. S. Comp. Stat. 1901, p. thereof unless enjoined. An injunction was 1568), and the ruling, “that the statute of prayed restraining him from selling the land limitations of Washington could not, be- and doing the acts described; that he be cause the laws of the United States for required to set forth the nature of his bade, commence to run until patent issued." claim, and that his claim be determined; The limitation of the statute is ten years. that he be adjudged to have no title or in

The defendant in error opposes as a bar terest whatever to the land or any part to these defenses the judgment in his favor thereof, and be enjoined from ever assertin the suit brought by the Spokane & Pa- ing any; "that the title of plaintiffs be delouse Railway Company and William S. creed good, valid, indefeasible fee simple, Powers and others, which judgment was af- and free from all claims of said defendant;' firmed by this court. 180 U. S. 173, 45 that the patent be declared to have issued L. ed. 479, 21 Sup. Ct. Rep. 319. Plaintiff under a misconstruction of law, that he be in error is the successor in interest of the held to be a trustee for the plaintiff, WilSpokane & Palouse Railway Company, and liam L. Powers, and his grantees, both diis estopped by the judgment if that com- rect and through mesne conveyance, and pany would be.

that Slaght be required to convey the land The object of the suit in which the judg- to Powers and his grantees. Slaght dement was rendered, as appears from the murred to the complaint and the demurrer findings of fact of the trial court, was to was sustained. The plaintiffs electing to have Slaght, defendant in error, “declared stand on the demurrer, judgment was ena trustee, and as holding the land in trust” tered dismissing the suit. This judgment for the plaintiffs in the suit, and to require was affirmed by the supreme court of the a conveyance from him to them, and to state and by this court, as we have seen. enjoin him from bringing any action to The complaint in the suit did not show oust them. The amended complaint, which what land or interest Powers deeded to the is made part of the findings, averred that Spokane & Palouse Railway Company, but it the patent to Slaght was “issued under a appears from the findings that the Northern misconstruction and misinterpretation of Pacific Railroad Company conveyed lots 10 the law," and that, at the date of the is- and 11 to Powers in August, 1887, and in suance of said patent, the land was not, nor September, 1887, Powers conveyed to the was it at the time he applied to enter the Spokane & Palouse Railway Company the same, public land, subject to settlement or tract of land then used as its right of way, entry under the land laws of the United and that it is the same tract which was States, other than the act of Congress ap- occupied by the plaintiff in error as its proved July 2, 1864 [13 Stat. at L. 365, right of way.

The basis of the title alchap. 217], granting land to the Northern leged in the suit was the grant to the Pacific Railroad Company. The facts and Northern Pacific Railroad Company by act circumstances from which these conclusions of Congress of July 2, 1864. Rights under were deduced and justified were set forth the act of Congress of March 3, 1875, or

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