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Opinion of Miller and Strong, JJ., dissenting.

same purport; Olcott v. Tioga Railroad Company,* and Rathbun v. Northern Central Railroad Company,† together with the cases already cited, showing that a judgment obtained by service of a summons upon the agent or officer of a foreign corporation is not personal and conclusive; and Blossburg Railroad Company v. Tioga Railroad Company, in the Circuit Court of the United States, heretofore referred to, all tend to the same conclusion.

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We have not been referred to a single decision of the New York courts in conflict with these authorities, nor are we aware of any. We are not at liberty to depart from this settled construction were we inclined to do so.§

There is nothing in the rulings upon the trial in regard to the admission or exclusion of evidence that requires our interference.

Mr. Justice FIELD concurred in this opinion.

Mr. Justice MILLER, dissenting:

I dissent from that part of the opinion of the court which relates to the defence of the statute of limitations.

If the State courts of New York have construed their statute concerning service of process, to mean that no such service will authorize a judgment against a corporation of another State, which will be valid beyond the limits of the State of New York, it is a most extraordinary and unneces sary decision, for it is the province of those other States, or of the Federal judiciary, to declare the effect of such judg ment, outside of the State of New York. Besides it is not asserted that any such decision has ever been made, except with reference to its effect upon the right of such corporations to plead the statute of limitations in the State courts of New York. Nor do I believe that the courts of any State of the Union except New York, have ever held that a person doing business within the State and liable at all times

* 20 New York, 210. † 50 Id. 656. ‡ 5 Blatchford's Circuit Court, 387. Gelpcke v. Dubuque, 1. Wallace, 175; 1 Stat. at Large, 92, note A.

Statement of the case.

to be sued and served personally with process cannot avail himself of the statute of limitations, if the time prescribed by it to bar such action has elapsed before it was commenced. The liability to suit where process can at all times be served, must in the nature of things be the test of the running of the statute. A different rule applied to an individual because he is a citizen or resident of another State, is a violation at once of equal justice and of the rights conferred by the second section of the fourth article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immuuities of citizens in the several States.

I can hardly believe, therefore, that the New York statute means that if two men doing business in adjoining houses. in the city of New York, one may avail himself of the statute, of the State for limitation of actions, when the time prescribed has elapsed, because he is a citizen of that State, while the other cannot because he is a citizen of New Jersey, when each has been equally and always liable to service of process. Nor do I believe, on a review of all the cases, that the courts of New York have intended to give such a construction to those statutes.

My brother STRONG agrees with me in these views.

SIMPSON V. GREELEY.

The doctrine settled in Williams v. Bank (11 Wheaton, 414), and declared in Masterson v. Herndon (10 Wallace, 416), to be "the established doctrine of the court"-that all the parties against whom a joint judgment or decrce is rendered must join in the-writ of error or appeal, or it will be dismissed, except sufficient cause for the non-joinder be shown-again adjudged.

ERROR to the Supreme Court of Kansas.

Carlos Greeley sued William A. Simpson and eight other persons in one of the county courts of Kansas, to recover

Argument for dismissal.

certain lands, together with damages for the detention of them; and for waste committed by the whole nine.

The nine defendants filed a joint answer.

The plaintiff replied; and after a trial judgment was given

"That the plaintiffs have and recover of and from said defendants the lands and tenements described in the declaration; that they also have and recover of the said William A. Simpson the sum of $4300, the value of the rents, issues, and profits of said lands and tenements, and for the timber taken from said land. by the said defendant; that the plaintiffs also have and recover of the other defendants the sum of $2600, to be credited as part of the said $4300, if collected, it being the value of the rents above found."

Simpson-none of his co-defendants joining-filed a petition in error to the Supreme Court of Kansas, alleging that the consent of none of his co-defendants could be obtained to join him in the proceeding. However, very soon afterwards they all did file a petition in error just like his own, and praying that the judgment rendered against them be reversed, for the causes and reasons set forth in his petition. The Supreme Court of Kansas affirmed the judgment, and a mandate was issued out of that court reciting,

"That a judgment in a certain civil action, wherein Carlos Greeley et AL. were plaintiffs, and William A. Simpson et AL. were defendants, was rendered by the latter court in favor of the said Greeley et AL., on a transcript of which judgment and record. said Simpson et AL. prosecuted a petition in error to the Supreme Court within and for the State of Kansas.”

From this judgment of the Supreme Court of the State, Simpson alone took this writ of error, assigning no cause why the others were not joined.

Mr. W. T. Otto (with whom was Mr. J. P. Usher), preliminary to argument upon the merits, asked to have the writ dismissed, observing that it was obvious that the whole nine original defendants were plaintiffs in error in the Supreme

Recapitulation of the case in the opinion.

Court of Kansas, and that a joint judgment affirming the judgment of the inferior court had been rendered against them. It was perfectly settled, he observed, that such a writ as the present one would be dismissed, there having béen no effort made by Simpson to have the other co-defendants join in it, and no cause shown or alleged why they did not.*

Mr. W. W. Nerison, contra.

Mr. Justice CLIFFORD delivered the opinion of the court. Fee simple title is claimed by the present defendants to the several tracts of land described in the declaration, and they commenced an action of ejectment to recover the possession of the same, and for the rents and profits, and for the value of certain timber which, as they allege, the defendants have cut thereon and converted to their own use.

Eight other persons besides the present plaintiff were joined as defendants in the suit, and they were all duly served with process and appeared and made defence in the first District Court of 'the State where the writ was returnable.

Two defences were set up, as follows: (1.) They, the defendants, denied every allegation and averment of the declaration. (2.) They pleaded that the title to the several tracts of land was in William A. Simpson; that he acquired the same in the manner and by the means circumstantially set forth in their second plea, and that the other defendants are in the possession of the said several tracts as tenants of the said Simpson, and have large and valuable crops growing thereon, and that they hold the same by lease from the actual owner of the title. Wherefore, they, the defendants, pray and demand judgment against the plaintiffs, and that the plaintiffs be enjoined and restrained from ever claiming, suing for, or setting up any title to the said several tracts of land, or either of them, or any part or portion thereof, and that the pretended estate and interest of the plaintiff's be determined and wholly held for naught.

* See Masterson v. Herndon, 10 Wallace, 416.

Recapitulation of the case in the opinion.

Leave was granted to the plaintiffs by the court to file a reply, and they did so, as more fully appears in the record, in which they controvert each and every of the material allegations of the answer, except that the defendants are in the possession of the premises, and allege that the principal defendant acquired the possession by wrongful and unlawful means, and reassert their claim of title, as set forth in the declaration. Subsequently the parties waived a jury and went to trial before the court. Evidence was introduced on both sides, and the court made numerous findings of fact and several conclusions of law. Certain exceptions were also taken both to the rulings and the findings of the court. Some delay followed, and both parties having been fully heard the court rendered judgment as follows: "That the plaintiffs have and recover of and from said defendants the lands and tenements described in the declaration. That they also have and recover of the said William A. Simpson the sum of $4300, the value of the rents, issues, and profits of said lands and tenements, and for the timber taken from said land by the said defendant. That the plaintiff's also have and recover of the other defendants the sum of $2600, to be credited as part of the said $4300, if collected, it being the value of the rents above found."

Judgment was signed on the 15th of November, 1870, and on the following day the defendant, William A. Simpson, filed a petition in error and a transcript of the record in the clerk's office of the Supreme Court of the State, in which he represents that the other defendants, naming each, will not consent to join in the petition, but the record shows that all the other defendants, on the 12th of January following, filed à petition in error in the Supreme Court, praying that the judgment rendered in the subordinate court should be reversed for the reasons stated in the petition of the first petitioner.

Due notice was given, by a summons issued under the first petition, to the original plaintiffs and all of the defend-ants except the first petitioner, that the first petitioner had filed such a petition and a transcript of the record in the

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