Dob ex dem. Gwynne v. Roe

4 Ohio 397

• Court: Ohio Supreme Court
• Decided: December 15, 1829
• Status: Published

Opinion

By the Court :

Upon service of a declaration in ejectment, if no application be made to the court by the tenant, or other person claiming title, for leave to defend, a judgment by default passes as of course; and the court have no power to compel the tenant in possession, or any one else, to make a defense. By section 59, of the judiciary act, a discretionary power is vested in the court to admit the tenant, landlord, or other person claiming title, upon application being made to the court for that purpose. In these cases the tenants are not before us. They make no application to be admitted defendants, either severally or in conjunction with their landlords; and it is out of the power of the court to compel them, nolensvolens, to undertake the defense. The application is made by the landlords alone, and having exhibited a prima facie right, they must be admitted as defendants. The landlords being admitted as defendants, and showing themselves citizens and residents of the Commonwealth of Pennsylvania, are entitled to the privileges of the act of Congress ; and the cases are accordingly certified to-the Circuit Court of the United States;