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SMITH V. MCNEAL, 109 U. S. 426 (1883)

U.S. Supreme Court

Smith v. McNeal, 109 U.S. 426 (1883)

Smith v. McNeal

Argued November 15, 18, 1883

Decide November 26, 1883

109 U.S. 426


A suit was begun, within the seven years prescribed by the statute of limitation of the Code of Tennessee, in the Circuit Court of the United States for the Western District of Tennessee for the recovery of land, which was

Page 109 U. S. 427

dismissed for want of jurisdiction by reason of the omission in the pleadings of a jurisdictional fact which actually existed. Within one year thereafter, the plaintiff in the former suit commenced another suit in the same court against the same parties to recover the same land, and set up the jurisdictional fact:


1. That although the second suit was begun more than seven years after the cause of action arose, it was within the saving clause of article 2755 of the Code of Tennessee, providing that:

"If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest."

2. The doctrine that a dismissal of a suit for want of jurisdiction is no bar to a second suit for the same cause of action reaffirmed, and the authorities cited.

On December 31, 1873, the plaintiffs in error brought suit against defendants in the Circuit Court of the United States for the Western District of Tennessee to recover forty acres of land. The declaration described the land and averred that the plaintiffs were possessed thereof, claiming in fee through a certificate of the United States district tax commissioners, naming them, under an act of Congress entitled "An act for the collection of taxes in insurrectionary districts within the United States and for other purposes," and the acts amending the same, of January 1, 1865, and that after such possession accrued, the defendants, on December 1, 1865, entered upon the premises and unlawfully withhold and detain the same, etc.

Two of the defendants, NcNeal and Caruthers, demurred to the declaration, first because it did not sufficiently describe the property sought to be recovered and second because it did not show that the plaintiffs were not citizens of the State of Tennessee so as to give the court jurisdiction of the cause.

On February 24, 1877, the court sustained the demurrer upon the ground that it had "no jurisdiction of the cause of action in plaintiffs' declaration alleged and set forth," and dismissed the suit.

Afterwards, on October 20, 1877, the plaintiffs in error brought the present suit against the same defendants in the

Page 109 U. S. 428

same court to recover the same tract of land. The declaration in this cause was identical with that in the former action, except that in this case the following averment was added:

"Defendants do not claim under, but adversely to, and deny the validity of plaintiffs' claim of title under the aforesaid acts of Congress, and the validity of plaintiffs' claim of title under the aforesaid acts of Congress is the only question in controversy between the plaintiffs and defendants."

The defendants pleaded the seven years' limitation prescribed by the statute of Tennessee, to which the plaintiffs pleaded the following replication:

"Now come the plaintiffs, by attorneys, and as to defendants' plea herein pleaded say that on the 31st of December, 1873, and within seven years from the time the plaintiffs' cause of action accrued, the plaintiffs brought suit against defendants in this Court to recover possession of the same premises whereof plaintiffs here now seek to recover possession, and the said suit was commenced upon the same cause of action that the plaintiffs' now writ and action are founded; that the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the 1st of September, 1877, upon which day a judgment (which said judgment remaining of record in this Court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this Court, and plaintiffs here make profert of the same, all of which plaintiffs are willing to certify."

The defendants demurred to this replication on two grounds: first, because it appeared, by the judgment referred to and made a part of the replication, that said judgment was upon the merits, and second because it appeared from the record of said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want of jurisdiction. The cause was heard upon this demurrer, which the court sustained, and entered judgment dismissing plaintiffs' suit. To reverse that judgment, this writ of error is prosecuted.

Page 109 U. S. 429

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