Whittle v. Artis

SAGE, District Judge. These cases involve the same questions. They are in ejectment against cotenants for an undivided interest in lands. Some of the plaintiffs are citizens and residents of Virginia, and others, of Maryland. In each petition, as it originally stood, partition at law was also sought, and Jane Barr and her husband, David Barr, citizens and residents of the District of Columbia, were joined as plaintiffs; all the defendants being citizens and residents of the southern district of Ohio. Upon the defendants’ objection, under a special appearance for that purpose only, this joinder was held to be fatal to the jurisdiction of this court. Thereupon, on motion of the plaintiffs, the action was dismissed without prejudice as to Jane Bair and David Barr, as was also so much of the action as related to partition of the real estate described in the petition. These dismissals left the actions pending as actions in ejectment by the remaining plaintiffs. How the objection is made that the case eannot proceed on their behalf only, and it presents the questions whether, by reason of the objection to the jurisdiction, the actions must be dismissed, and whether all the tenants in common are necessary parties to the action. They were necessary parties to the action for partition. But that action, although joined with the action in ejectment, wa3 separable and independent, and might be, as it was, dismissed without prejudice, and without affecting the jurisdiction of the action in ejectment. If Mrs. Barr and her husband, as plaintiffs in the action in ejectment, could be dismissed therefrom, and the action still be maintained, the action could proceed; otherwise, it must be dismissed. Jane Barr and her husband are not necessary parties to the action in ejectment. At common law, tenants in common cannot join, but must sever, in separate demises, in a declaration in ejectment. Chit. Pl. § 71. A tenant in common recovers only his aliquot part or share. Mobley v. Bruner, 59 Pa. St. 481; Minke v. McNamee, 30 Md. 294; Jones v. Walker, 47 Ala. 175. Two or more tenants in common may sue in ejectment, or any one may sue alone for his share. Tilden v. Tilden, 13 Gray, 108; Bush v. Bradley, 4,Day, 303; Penrod v. Danner, 19 Ohio, 218; Shepard v. Ryers, 15 Johns. 501. I see no necessity for a dismissal, but service of summons in an action over which the court at the time has no jurisdiction brings nobody into court. The appearance was special, for the purpose only of objecting to the jurisdiction, and there must be new summons and service, (excepting in Ho. 570, where there was a general appearance,) and the plaintiffs must pay the costs already incurred. Upon these terms the motion to dismiss will be overruled.