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diction once lost can only be regained by some proper notice, the case at bar is an illustration that such action may impair the substantial right of a party to be heard against the rendition of a new judgment against him. Had notice been given, the defendant could have availed himself of his right to plead his discharge in bankruptcy by proper proceedings for that purpose. Loveland, Bankr. 783. It may be that he did not lose all right to avail himself of the discharge in some other manner, but he had the right to show that, in view of his discharge, the judgment in question ought not to be rendered against him.
judgment is set up against him in another forum.
We find nothing in any decision of this court which sanctions any different procedure, and the cases in the state courts which hold that notice is necessary after the term before a judgment can be set aside are numerous. Some of them will be found in the note in the margin.†
To sanction a proceeding rendering a new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate 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 court held this a mistake of a merely formal and clerical kind; and "when no action has been taken on an order or judgment, and the rights of parties to the proceeding or those of third persons cannot be affected unjustly by the correction of an error, the court has power to order an action to be brought forward and a judgment to be vacated in order that an entry may be made in conformity with the truth."
There is no suggestion that such action can be "brought forward" without notice to the adverse party, or a correction made where, as in the present case, the party has lost a valuable right in reliance upon a judgment of dismissal.
And if it be held that the mistake in this case, though not of the clerk, was of a clerical character, and within the rule permitting the correction of such mistakes by the court, a point unnecessary to decide in this case, such a correction cannot be made after term without notice, certainly where the changed condition of the parties in view of a new right acquired would render it prejudicial to render a new judgment.
party has had an opportunity to present his
We find no error in the judgment of the Court of Appeals overruling the demurrer to the second plea, and the same is affirmed.
Mr. Justice Brewer took no part in this case.
THOMAS R. MARTIN, Plff. in Err.,
DISTRICT OF COLUMBIA. (No. 190.)
The plaintiff in error also relies upon the proposition that the Massachusetts statute CLARENCE A. BRANDENBURG, Plff. in
(Revised Laws of Massachusetts, chap. 193, § 22) provides that if a judgment is rendered in the absence of the petitioner, and without his knowledge, a writ of review may be granted upon petition filed within one year after the petitioner first had notice of the judgment; otherwise, within one year after the judgment was rendered. But we cannot agree that this remedy supplied the want of jurisdiction in the Massachusetts court to render, after the term and without notice, a new and different judgment against
the defendant in error. Whatever his remedy may be in the state courts, want of jurisdiction may be pleaded wherever the
DISTRICT OF COLUMBIA. (No. 191.)
Public improvements-assessments - bene
The apportionment of the cost of widen
†Murphy v. Farr, 11 N. J. L. 186; Martin v. Bank of State, 20 Ark. 636; De Witt v. Monroe, 20 Tex. 289; Berthold v. Fox, 21 Minn. 51; Cobb v. Wood, 8 N. C. (1 Hawks) 95; Hill v. Hoover, 5 Wis. 386, 68 Am. Dec. 70; Perkins v. Hayward, 132 Ind. 95, 100, 31 N. E. 670; Bryant v. Vix, 83 Ill. 11. 15; Keeney v. Lyon, 21 Iowa, 277; Weed v. Weed, 25 Conn. 337; Fischesser v. Thompson, 45 Ga. 459, 467.
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), as 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. 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 interests require it.
[Nos. 190, 191.]
IN ERROR to the Court of Appeals of the N ERROR to the Court of Appeals of the District of Columbia to review judgments affirming judgments of the Supreme Court of that District, quashing writs of certiorari to test the validity of assessments for the widening of an alley in the city of Washington. Reversed.
See same case below, No. 190, 26 App. D. C. 146; No. 191, 26 App. D. C. 140.
The facts are stated in the opinion. Messrs. Edwin C. Brandenburg, George E. Sullivan, and Clarence A. Brandenburg for plaintiffs in error.
Messrs. Francis H. Stephens and Edward H. Thomas for defendant in error.
Mr. Justice Holmes delivered the opinion
of the court:
The law is not a legislative adjudication concerning a particular place and a particular plan, like the one before the court in
Wight v. Davidson, 181 U. S. 371, 45 L. ed.
These are writs of certiorari to test the validity of assessments for the widening of an alley in Washington under the act of Congress of July 22, 1892, chap. 230 (27 Stat. at L. 255), as amended by the act of August 24, 1894, chap. 328 (28 Stat. at L. 501). The writs were quashed by the supreme court of the District and the judgments affirmed by the court of appeals. 26 App. D. C. 140, 146. The principal case is that of Brandenburg, the owner of land taken for the widening. That of Martin raises questions as to the rights of a mortgagee of the same land. The main issue is upon the constitutionality of the act. The statute authorizes the commissioners of the District to condemn, open, widen, etc., alleys 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 a precedent. Constitutional rights like sought to be opened, etc., or in certain other others are matters of degree. To illustrate: 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 compento 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
But when the chance of the cost exceed
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 jury understood their duty to be to divide the whole cost among the landowners, whether the benefit was equal to their share of the cost or not. It must be ad
more or less lent itself to that understanding. There is nothing in the record sufficient to show that the jury took a different view, or that they limited the assessment to the benefit actually conferred on these lots. For this reason the assessment must be quashed, and it will not be necessary to consider the special objections of the mortgagee.
And yet it is evident that the act of Congress under consideration is very like earlier acts that have been sustained. That passed upon in Wight v. Davidson, it is true, dealt with a special tract, and so re-mitted that the language of the statute quired the hypothesis of a legislative determination as to the amount of benefit conferred. But the real ground of the decision is shown by the citation (181 U. S. 378, 379, 45 L. ed. 904, 21 Sup. Ct. Rep. 616) of Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966, when the same principle was sustained in a general law. 167 U. S. 589, 590, 42 L. ed. 288, 17 Sup. Ct. Rep. 966. It is true again that in Bauman v. Ross the land benefited was to be ascertained by the jury instead of being limited by the statute to a square; but it was none the less possible that the sum charged might exceed the gain. As only half the cost was charged in that case it may be that, on the practical distinction to which we have adverted in connection with Louisville & N. R. Co. v. Barber Asphalt Paving Co. the danger of such an excess was so little that it might be neglected, but the decision was not put on that ground.
In view of the decisions to which we have referred it would be unfortunate if the present act should be declared unconstitutional after it has stood so long. We think that without a violent construction of the statute it may be read in such a way as not to raise the difficult question with which we have been concerned. It is true that the jury is to apportion an amount equal to the amount of the damage ascertained, but it is to apportion it "according as each lot or part of lot of land in such square may be benefited by the opening, etc." Very likely it was thought that in general, having regard to the shortness of the alleys, the benefits would be greater than the cost. But the words quoted permit, if they do not require, the interpretation that in any event the apportionment is to be limited to the benefit, and if it is so limited all serious doubt as to the validity of the statute disappears.
It is clear, however, from the petitions and the returns that the jury did not ad
Mr. Justice Harlan, Mr. Justice White, and Mr. Justice McKenna concur in the judgment.
NORTHERN PACIFIC RAILWAY COM-
1. A decree rendered on demurrer, distrust in certain lands in favor of a railway missing, on the merits, a suit to establish a company, which set up, as a basis of its alleged title in fee simple, the railroad land grant act of July 2, 1864 (13 Stat. at L. 365, chap. 217), prevents the successor in interest of such railway company from asserting, in an action of ejectment involving the same property, brought by the defendant in the former suit, that such company had quired title under the act of March 3. 1875 18 Stat. at L. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), or under the state statute of limitations. Limitation of actions-when statute begins to run.
2. A state statute of limitations for the recovery of real property does not begin to run in favor of a railway company as against a settler under the homestead laws of the United States until patent has issued.*
minister the statute in the way in which Argued and submitted January 11, 1907. Dewe have determined that it should be read. About one fifth of each lot was taken, and
cided March 11, 1907.
N ERROR to the Supreme Court of the
was valued at $92 and $75 respectively. State of Washington to review a judg
That would give a value of $368 and $300,
*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 an action of ejectment. Affirmed.
In 1886 and the first half of 1887 the 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 to the survey previously made and staked
The facts are stated in the opinion. Messrs. Charles W. Bunn and James B. out, and from and after its completion it Kerr for plaintiffs in error.
Messrs. U. L. Ettinger, Thomas Neill, and W. E. McCroskey for defendant in er
Mr. Justice McKenna delivered the opinion of the court:
This is an action of ejectment brought by defendant in error against plaintiffs in error in the superior court in and for the county of Whitman, state of Washington, for land situate in the town of Palouse.
was operated daily and continuously in the carrying of freight, passengers, and mail. The right of way claimed was 100 feet wide on either side of the main line of railroad. It would be possible for plaintiff in error, who is the successor of the Spokane company, to carry freight, passengers, and mail over a right of way not exceeding 25 feet in width, and a space of 100 feet square would permit of the erection of a depot at the town of Palouse. But great inconvenience would result to the citizens of that town and vicinity and the railway company. For the convenient, prompt, and expeditious handling of freight and the erection of elevators for storing grain and wheat a right of way of 200 feet is necessary. At the time the railroad was surveyed and constructed defendant in error resided upon said lands and knew of its construction and the expenditure of large sums of money therefor. About the time of the survey he published a notice in the Palouse News, a newspaper published in the vicinity of the land, forbidding all persons from trespassing thereon. This is the only objection he made. In the month of August, 1887, the Northern Pacific Railroad Company, claiming to be the owner of lots 10 and 11, conveyed the same to William S. Powers, and he, on the 14th of September of the same year, conveyed to the Spokane & Palouse Railway Company a right of way 200 feet wide over lots 10 and 11, being the same then claimed by that company and now claimed by plaintiff in error, the Northern Pacific Railroad Company. On the 12th of May, 1897, the Spokane & Palouse Railway Company, Powers, and others, as successors in interest of Powers under the above deed of conveyance from the Northern Pacific Railroad Company, brought a suit against the defendant in error which
The trial court adjudged defendant in error the owner in fee simple of the land sued for, and that the plaintiffs in error were in the possession and occupation of the portions thereof described in their answers against the will and consent of the plaintiff (defendant in error), and were occupying and in possession thereof without right, except that the Northern Pacific Railway Company, as a public carrier, had a right to hold the possession of a strip of land 25 feet wide, "being 12% feet on each side of the center line between the rails of its main track over and across said land, and also a tract 100 feet square." This tract was described. Defendant in error was adjudged entitled to recover "all the rest of the land described in the amended complaint." And that a writ issue to put him in possession thereof, but not until ninety days from the date of the judgment, and, if an appeal should be taken and proceedings stayed, then not until ninety days from the time the remittitur from the supreme court affirming the judgment should be filed; and if, in the meantime, the railway company should commence proceeding in the proper court to condemn the land claimed by it and described in its answer, for railroad purposes, then said writ should not be issued as to such land as it might seek to condemn, unless the company should after-will hereafter be referred to and described. wards dismiss such proceedings or fail to prosecute the same to final judgment and pay the award that might be made therein. The supreme court affirmed the judgment. 39 Wash. 576, 81 Pac. 1062.
The facts, as far as necessary to be stated, are that after proceedings in the land office, to which the railway company was a party, a homestead patent was issued to defendant in error April 20, 1897, to lots 10, 11, 14, and 15 of section 1, township 16 N., range 45 E., Willamette meridi
The complaint was amended. The date of
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 plaintiffs asserted and summons was served on the Northern Pacific Railway Company on the 9th of October, 1901, and the complaint was filed on the 4th of June, 1902.
The Spokane & Palouse Railway Company conveyed the right of way in controversy and all of its property on the 21st of February, 1899, to the Northern Pacific Railway Company, which has ever since maintained and operated said road from Spokane, Washington, to Lewiston, Idaho, and intervening points.
claimed title to certain portions of the land under and by virtue of certain instruments duly made and delivered by Powers and his grantees. And it was also averred that the questions involved were of common and general interest to many persons whom it was impracticable to make parties, and that such persons and the plaintiffs were the owners in fee simple and had an indefeasible title, and were in possession of lots 10, 11, 14, and 15 of section 1, township 16 N., 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. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), and the ruling, "that the statute of limitations of Washington could not, because the laws of the United States forbade, commence to run until patent issued." The limitation of the statute is ten years. The defendant in error opposes as a bar to these defenses the judgment in his favor in the suit brought by the Spokane & Palouse Railway Company and William S. Powers and others, which judgment was affirmed by this court. 180 U. S. 173, 45 L. ed. 479, 21 Sup. Ct. Rep. 319. Plaintiff in error is the successor in interest of the Spokane & Palouse Railway Company, and is estopped by the judgment if that com-rect and through mesne conveyance, and pany would be.
The object of the suit in which the judgment was rendered, as appears from the findings of fact of the trial court, was to have Slaght, defendant in error, "declared a trustee, and as holding the land in trust" for the plaintiffs in the suit, and to require a conveyance from him to them, and to enjoin him from bringing any action to oust them. The amended complaint, which is made part of the findings, averred that the patent to Slaght was "issued under a misconstruction and misinterpretation of the law," and that, at the date of the issuance of said patent, the land was not, nor was it at the time he applied to enter the same, public land, subject to settlement or entry under the land laws of the United States, other than the act of Congress approved July 2, 1864 [13 Stat. at L. 365, chap. 217], granting land to the Northern Pacific Railroad Company. The facts and circumstances from which these conclusions were deduced and justified were set forth
plaintiffs from said premises or a portion thereof unless enjoined. An injunction was prayed restraining him from selling the land and doing the acts described; that he be required to set forth the nature of his claim, and that his claim be determined; that he be adjudged to have no title or interest whatever to the land or any part thereof, and be enjoined from ever asserting any; "that the title of plaintiffs be decreed good, valid, indefeasible fee simple, and free from all claims of said defendant;" that the patent be declared to have issued under a misconstruction of law, that he be held to be a trustee for the plaintiff, William L. Powers, and his grantees, both di
that Slaght be required to convey the land to Powers and his grantees. Slaght demurred to the complaint and the demurrer was sustained. The plaintiffs electing to stand on the demurrer, judgment was entered dismissing the suit. This judgment was affirmed by the supreme court of the state and by this court, as we have seen.
The complaint in the suit did not show what land or interest Powers deeded to the Spokane & Palouse Railway Company, but it appears from the findings that the Northern Pacific Railroad Company conveyed lots 10 and 11 to Powers in August, 1887, and in September, 1887, Powers conveyed to the Spokane & Palouse Railway Company the tract of land then used as its right of way, and that it is the same tract which was occupied by the plaintiff in error as its right of way. The basis of the title alleged in the suit was the grant to the Northern Pacific Railroad Company by act of Congress of July 2, 1864. Rights under the act of Congress of March 3, 1875, or