PRESTON V. BRACKEN, 51 U. S. 81 (1850)

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U.S. Supreme Court

Preston v. Bracken, 51 U.S. 10 How. 81 81 (1850)

Preston v. Bracken

51 U.S. (10 How.) 81




This case was decided on the same ground as the preceding case of McNulty v. Batty.

An action of ejectment was commenced at the April term, 1845, of the Iowa County Court by the defendant in error against the plaintiffs in error to recover a lot of land situate in that county. The venue was afterwards changed to the County of Milwaukee. Issue having been joined, and a jury empanelled and sworn, a verdict was found for the plaintiff, upon which a judgment was entered.

On 19 July, 1847, the case was carried by writ of error to the Supreme Court of Wisconsin Territory, and on 2 August the judgment of the County Court was affirmed by a divided court.

Whereupon a writ of error to the Supreme Court of the Territory of Wisconsin was sued out of this Court, and the citation served on 24 November, 1847.

Wisconsin was admitted into the Union as a state by the act of Congress approved 29 May, 1848.

MR. JUSTICE NELSON delivered the opinion of the Court.

The suit was an action of ejectment brought by the plaintiff

Page 51 U. S. 82

below, the defendant in error, in the second, and removed to the Third Judicial District of the territory, to recover possession of a small piece of land, and was commenced on 15 April, 1845.

Issue being joined between the parties, such proceedings were had thereon that judgment was afterwards rendered against the defendants in the June term of said court in the year 1846.

The case was afterwards removed to the supreme court of the territory, and the judgment of the court below affirmed by a divided opinion at the July term of that court, to-wit, on 2 August, 1847.

The judgment was afterwards removed to this Court by a writ of error for review. The citation is signed 22 November, 1847.

The case was therefore pending here on 29 May, 1848, at the time of the admission of the territory into the Union as a state. It is one not of a federal character, but belonging to the state judicature, and therefore falls within the decision of the case of McNulty v. Batty, just made, and the writ of error must be abated.


This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Wisconsin, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court that this writ of error be and the same is hereby abated.

Mr. Walker, of counsel for the defendant in error, moved the Court to direct the clerk to what court the mandate or other process prescribed by the forty-third rule of Court should be addressed. On consideration whereof, it is now here ordered by the Court that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause.

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