The Federal Reporter. Volume 55 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. May-July, 1893. Page: 17
xv, 1024 p. ; 23 cm.View a full description of this legislative document.
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EX PARTE MEANING.
Ex parte MENSING.
CLAFLTN et al. v. SOUTH CAROLINA R. CO et al.
(Circuit Court, D. South Carolina. April 12, 1893.)
EQUITY-PARTIES-INTERVENTION.
Where, in a suit in equity, an execution has issued, and a levy and sale
have been made of certain lands, a third party, who claims to be the true
owner, cannot intervene, for the purpose of moving to set aside the execu-
tion, when there is no privity of estate between him and the party against
whom the execution has issued. His remedy is a bill to quiet title, or he
may, in an action at law, plead the invalidity of the execution.
In Equity. Petition by Henry C. Mensing for leave to intervene
in the suit of Calvin Claflin and others against the South Carolina
Railroad Company and others. Denied.
C. B. Northrop, for the motion.
Mitchell & Smith, opposed.
SIMONTON, District Judge. The petitioner alleges that under
an execution issuing out of the equity side of this court, in the
main cause, certain lands of his were levied upon as property of
the South Carolina Railroad Company, and attempted to be sold;
that claiming under this sale, D. H. Chamberlain now seeks to
dispossess him. He also alleges that many persons, complainants
in the main cause, have died, and were dead when the alias exe-
cution under which the marshal proceeded was issued, whereby
the said suit was practically suspended, awaiting the renewal of
the suit, or the suggestions on the record, and that so the said ex-
ecution was void. He also alleges that the execution was void
because the time for the issuing of an alias execution under the
law controlling this case had expired. He seeks to intervene in
this case for the purpose of moving to set aside said execution,
fearing that he cannot attack it in any other way. He has not
alleged-in fact, he cannot allege-that he has any privity with
any party to the main cause. He denies, himself, that he has any
privity of estate; for he does not claim his land by or through the
South Carolina Railroad Company, and on the contrary denies its
title to or claim on this land. Under these circumstances, he can-
not be made a party to the main case. The case cannot be res
judicata as to him, or affect his rights at all, if his contention
be true. He is an utter stranger to, and is not affected by, it. The
only mode in which he could get into a court of equity on the
grounds set up by him would be by bill to quiet title. But inas-
much as there is a 'suit pending between himself and D. H. Cham-
berlain, and about to be tried, attacking this title, and testing
its validity, a bill to quiet title would not lie. Story, Eq. Jur.
826. If, as he alleges, this execution is utterly void, he can, in
his defense at law, avail himself of this, if the execution be offered
in evidence as a link in the chain of plaintiff's title.
The petition is dismissed.
v.55F.no.1-2
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The Federal Reporter. Volume 55 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. May-July, 1893., legislative document, 1893; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc36382/m1/32/: accessed March 28, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.