Angelina R. Eberly and Peyton Lytle, by His Next Friend, A. B. Eberly, in Error v. Lewis Moore and Charles Raylon

65 U.S. 147, 16 L. Ed. 612, 24 How. 147, 1860 U.S. LEXIS 381
CourtSupreme Court of the United States
DecidedJanuary 18, 1861
StatusPublished
Cited by9 cases

This text of 65 U.S. 147 (Angelina R. Eberly and Peyton Lytle, by His Next Friend, A. B. Eberly, in Error v. Lewis Moore and Charles Raylon) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angelina R. Eberly and Peyton Lytle, by His Next Friend, A. B. Eberly, in Error v. Lewis Moore and Charles Raylon, 65 U.S. 147, 16 L. Ed. 612, 24 How. 147, 1860 U.S. LEXIS 381 (1861).

Opinion

65 U.S. 147

24 How. 147

16 L.Ed. 612

ANGELINA R. EBERLY AND PEYTON LYTLE, BY HIS NEXT
FRIEND, A. B. EBERLY, PLAINTIFFS IN ERROR,
v.
LEWIS MOORE AND CHARLES RAYLON.

December Term, 1860

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

Angelina R. Eberly, and the minor, Peyton Lytle, brought an action of trespass to try title to a tract of land situated in Falls county, in the State of Texas. The suit was brought against a number of persons, who adopted different modes of defence. Moore and Raybon pleaded the general issue and certain pleas of adverse possession in bar. At the succeeding term of the court they presented a motion for leave to withdraw their answer, and plead in abatement, upon the ground that the plaintiffs, instead of being citizens of Kentucky, as they had alleged, were in reality citizens of Texas, and consequently that the court had no jurisdiction over the case. The motion was granted and the pleas in abatement filed. Other proceedings took place which it is not necessary to state. After the jury was impannelled, the court charged them as follows:

GENTLEMEN OF THE JURY: To give the court jurisdiction of this case, it is necessary that the plaintiffs should be non-residents, or citizens of the State of Texas. The petition alleges that two of the plaintiffs, viz: Mrs. Eberly and Peyton Lytle, are citizens of the State of Kentucky. This allegation is denied by the plea in abatement, which avers them to be citizens of the State of Texas. Upon this issue arises the question of fact which you are to determine.

When a domicil or citizenship is once acquired in a State, a mere temporary removal will not affect it, and a citizenship elsewhere will not be acquired without a corresponding removal, accompanied with a bona fide intent for that purpose. This intent the jury must determine from all the facts and circumstances in evidence before them. The jury will simply state in their verdict whether, from the proof before them in this case, Mrs. Eberly, and her grandson, Peyton Lytle, or either of them, were citizens of the States of Kentucky or Texas on the 4th November, 1855.

T. H. DUVAL, U. S. Dist, Judge.

The defendants ask the court to charge, that if Texas was the natural domicil of Peyton Lytle, that is, the domicil of his birth, and if it remained so until the death of his parents, then it was not in the power of the grandmother to change his domicil by carrying him to Kentucky, and thus to confer upon him that citizenship which would give this court jurisdiction.

JNO. A. & R. GREEN, For Def'ts.

The above instruction is given.

T. H. DUVAL, U. S. Dist. Judge.

And the jury having heard the evidence, and argument of counsel, and the charge of the court, retired, and returned into court with the following verdict, which is in words, to wit:

'We, the jury, find, from the law and the evidence, that the domicil or residence of the plaintiffs in this case, Angelina R. Eberly, and her grandson, Peyton Lytle, never has been changed from the State of Texas, and that their domicil or residence was in the State of Texas at the commencement of this suit.'

The counsel for the plaintiffs took an exception to the judgment of the court, granting permission to the defendants to withdraw their plea first filed and file one in abatement; and afterwards moved the court for judgment by default to be entered against the defendants, for want of a defence or answer; which motion being overruled by the court, the plaintiffs excepted. The jury then found that the residence of the plaintiffs was in Texas, and the court dismissed the suit.

The case was argued by Mr. Hale for the plaintiffs in error, and submitted on a printed argument by Mr. Ballinger for the defendant.

That part only of the argument of Mr. Hale which related to the power of the court to grant leave to the defendants to withdraw their first plea and plead in abatement can be inserted.

Ordinary questions of amendment are intrusted to the discretion of the inferior courts, and are not revisable here; but in a case of this character, the courts of law have no discretion. The 32nd section of the act of 1789, (1 Stat. at L., 91,) applies, in its first clause, to the correction of formal defects or errors by a reference to other parts of the record; and in its last and more general clause, to an amendment of 'any defect in the process or pleadings.' It is obvious that this statute grants only the power of correcting an error occurring in the body of a pleading, and is not to be understood as authorizing the cancellation or withdrawal of the pleading itself. In the latter case there would be no 'defect' to be supplied, as there would be nothing left in which to supply it. The power, then, to allow the withdrawal of an entire plea and the substitution of another, must be derived, if at all, from the common law, or the general and necessary authority of a court in ordinationem litis. But this general authority cannot extend to the case of amendments, because then there would have been no need of the enabling statutes. And at common law, the courts had at first no power of admitting amendments after the term.

Bac. Ab. Amendment, A.

Blackmore's case, 6 Co. R., 157.

Com. Dig. Prerogative, D., 85.

Nelson v. Barker, 3 McLean, 379.

Afterwards their power was considered to continue as long as the cause was 'in paper.'

Tidd's Pract., 697.

Bondfield v. Milner, 2 Burr., 1099.

The expression 'in paper' appears to be strictly applied to the condition of a cause before the impannelling of a jury; but the decisions are conflicting as to the power of granting an amendment in a material point, (except to correct a variance,) after issue is taken. It is clear that an omission cannot, in the English courts, be supplied after that time.

Bye v. Bower, Carr and M., 262.

John v. Currie, 6 Carr and P., 618.

Brashear v. Jackson, 6 Mees. and W., 549.

Webb v. Hill, Mood and M., 253.

But there have been instances where a demurrer or replication was allowed to be withdrawn and a new pleading substituted. In these cases, however, it is to be noticed that the object has been to speed the cause. There is no precedent for the withdrawal of a plea in bar, to admit either a demurrer or a plea in abatement. On the contrary, it is well settled that a plea, introduced by amendment, must be to the merits of the case.

Law v. Law, Str., 960.

Perkins v. Burbank, 2 Mass., 73.

Eaton v. Whittaker, 6 Pick., 465.

Beach v. Fulton Bank, 3 Wend., 573, 576.

Waples v. McGee, 2 Harring, 444.

See, also, D'Wolf v.

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65 U.S. 147, 16 L. Ed. 612, 24 How. 147, 1860 U.S. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelina-r-eberly-and-peyton-lytle-by-his-next-friend-a-b-eberly-in-scotus-1861.