Cosey v. Smith

32 App. D.C. 193, 1908 U.S. App. LEXIS 5704

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 1, 1908
• Docket: No. 1827
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

This case was previously here upon an appeal by the present appellee. 26 App. D. C. 569. The decree was then reversed in an order giving the trial court.discretion to dismiss the bill. A motion was thereupon made to recall the mandate, suggesting a diminution of the record, and for leave to file an additional transcript setting out certain depositions omitted from the original record. Mr. Chief Justice Shepard, in the opinion denying the motion, said: “The right of the complainant to maintain the bill for partition in this case depended, in the first instance,, on proof sufficient to show that George Augustus Butler, who died seised of the premises, left no descendants, that the kindred of the blood of his father, who would next have inherited by virtue of the statute of descent, were extinct, and that he and those under whom he claimed, and the defendants and those under whom they claim, were the descendants of the brothers and sisters of Mary S. Butler, the mother of said George A-Butler. The decree appealed from was reversed because of the insufficiency of the evidence contained in the record, and the cause was remanded that the complainant might have the opportunity to perfect his evidence, if so advised. * * * The appellee must now retry his case in the court below, where he will have the opportunity to have it heard upon all of the evidence available, it being understood that the question actually determined by this court was that the evidence contained in the record .as submitted was not sufficient to show title in the descendants of the mother of George Augustus Butler.”

Subsequently the trial court, upon motion, dismissed the bill without prejudice, on the ground that the complainant was not then in possession of the premises sought to be partitioned, and the defendant was in possession thereof, claiming the same adversely to the complainant under an independent and hostile title.

Whether the opinion denying the above motion to recall the mandate operated as a modification of the original opinion is not material, because, independently of that question, the present appeal must be dismissed.

The present record consists of the bill, plea, and answer under oatb, the mandate issued in the former case, two motions, the decree of dismissal, and three depositions taken in 1892 in another case. A motion was made by appellant at the hearing to consolidate with the former case, but the motion was overruled for obvious reasons.

The record being thus incomplete, there is nothing for us to review, and we therefore must dismiss the appeal, with costs.

Dismissed.