Howard v. Kennedy's Exr's
Supreme Court of Alabama
Writ of error to the Circuit Court of Mobile. This was a motion by the plaintiffs in error, at the Spring term of the Circuit Court in 1842, to set aside a judgment by default, rendered at the preceding term, in an action of ejectment, in which Doe ex dem Kennedy’s executors was plaintiff, and Isaac H. Lewis and Norman Otis, were tenants in possession.
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Writ of error to the Circuit Court of Mobile. This was a motion by the plaintiffs in error, at the Spring term of the Circuit Court in 1842, to set aside a judgment by default, rendered at the preceding term, in an action of ejectment, in which Doe ex dem Kennedy’s executors was plaintiff, and Isaac H. Lewis and Norman Otis, were tenants in possession. The motion was founded on these facts: It appears by affidavits filed, that the lessee of the plaintiffs in error, in November, 1836, brought an ejectment in the District Court of the United States at Mobile, for the recovery of a lot in the…
1Opinion of the CourtCollier, C. J.
The questions to be considered are — 1. Against whom does the judgment in ejectment operate? 2. Is it competent for the Court rendering the judgment, after the writ of Habere facias possessionem has been executed, to set aside the execution and judgment, and let in a stranger, (hav-*595mg prima facie a valid title,) to defend, who it appeared was not in privity with the defendant? Is the- refusal to set aside a judgment and execution under such circumstances revisable on error?
1. The judgment in ejectment determines the right of the plaintiff to recover of the defendant; and is binding only on…
2Cases cited2 opinions
- Jackson ex dem. Sutherland v. StilesNew York Supreme Court · 1826
- Jackson ex dem. Eden v. RathboneNew York Supreme Court · 1824
3Cited by23 opinions
- Clark v. WhitfieldSupreme Court of Alabama · 1925
- Smith v. GayleSupreme Court of Alabama · 1877
- Nicrosi v. PhillipiSupreme Court of Alabama · 1890
- Carlisle v. KillebrewSupreme Court of Alabama · 1889
- Sampson v. OhleyerCalifornia Supreme Court · 1863
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