KEARNEY V. DENN, 82 U. S. 51 (1872)

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U.S. Supreme Court

Kearney v. Denn, 82 U.S. 15 Wall. 51 51 (1872)

Kearney v. Denn

82 U.S. (15 Wall.) 51


1. A suit was brought in a circuit court, properly as regarded the citizenship of the parties. The defendant died, and his representatives were made defendants, nothing being said as to their citizenship. On motion to dismiss because the plaintiff and defendants were citizens of the same state, the circuit court refused the motion, but on what ground did not appear, the record not showing whether any evidence had been taken on the matter, and recording only that the defendants "reserved their exception to the decision of the court." Held that as the record stood, there was no case that this Court could examine.

2. A judgment of an Orphans' Court of Maryland (affirmed in the Court of Appeals), passing directly on the legitimacy of a son who was applying

Page 82 U. S. 52

for administration to his father's estate, held to be inadmissible to show the illegitimacy of his sisters by the same connection, though the judgment was entered only after an issue directed to ascertain whether the father was ever lawfully married to the admitted mother of the children, either before or subsequently to the birth of the son, and after a verdict in the negative.

Dr. David Crawford, of Prince George's County, Maryland, died there in 1859, a bachelor, leaving a large personal and real estate, but neither father or mother, brother or sister, or the descendants of either to inherit it. A first cousin named Blackburne, who was in possession of his realty, applied for administration on the personalty. A counter-application was made by one George T. Crawford, of Maryland, son of Thomas B. Crawford, a brother of the intestate, who had died before him. The application of George T. Crawford was opposed by Blackburne, on the ground that he, the said George, was not a legitimate child of the said Thomas; but with three other children, his illegitimate offspring from a connection with one Elizabeth Taylor.

Thereupon the Orphans' Court of Prince George's County, where the application of both parties was made and the contest was pending, directed an issue to settle the question,

"Whether the said Thomas was ever lawfully married to Elizabeth Taylor, either before or after the birth of the said George."

The jury found a verdict against the legitimacy; and judgment was entered accordingly; a judgment afterwards affirmed in the Court of Appeals of Maryland.

In this state of things George T. Crawford, who had lost the administration, and his three sisters, all of Maryland, brought ejectment in the court below against Blackburne for the real estate. On that trial Blackburne offered in evidence as proof of the illegitimacy of the plaintiffs, a transcript of the record of the Orphans' Court of Prince George's County,

Page 82 U. S. 53

on the application for administration, and the circuit court rejected it. Verdict and judgment having been given for the Crawfords, the defendant, Blackburne, brought the case here on error, [Footnote 1] where the ruling was declared to have been in part erroneous. This Court then said:

"The transcript was competent evidence against George T. Crawford. As to him it was an estoppel and barred his right of action. But it did not affect the other defendants in error, who were not parties to the proceedings."

The judgment was accordingly reversed, and a venire de novo ordered.

George T. Crawford, one of the plaintiffs, now died. He had children, but they were not made parties to the case, which went on in the names of the other plaintiffs. After some continuances and before the case came on to be retried, the attorneys of the plaintiffs suggested to the court that since the last continuance, Blackburne, the defendant, had died, and they therefore moved for leave, which was granted, to let new parties, to-wit, Mary Kearney, and J. L. Henry, and Kate Kearney Henry, his wife (nothing being said about their citizenship), appear and defend; these three persons, as was admitted by an agreement of counsel on both sides, filed, being "alone interested as defendants," and it being further agreed by the counsel that "the original pleadings shall stand mutatis mutandis."

The cause was then continued till the next term, when the defendants filed a motion in writing to dismiss the case for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J. L. Henry, and Kate Kearney Henry, his wife, had been during the same period citizens and residents of the State of Maryland, and that the court had therefore no jurisdiction to hear and decide the cause. No proof appeared to have been offered of these facts. The court overruled the motion, but

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upon what ground did not appear. It was noted on the record that the defendants "reserve their exception to the decision of the court." This was all that the record contains on the matter.

The cause was then afterwards tried on its merits, when the defendants offered a transcript of the record of the Orphans' Court to show the illegitimacy of all the new plaintiffs, the sisters of George T. Crawford as well as of himself. The court below refused to receive it, and the defendants excepted. Verdict and judgment having again gone for the plaintiffs the defendants brought the case here, the two questions now being,

1st. Had the court below jurisdiction -- in other words, was the suit after the substitution of the new defendants an original suit, or merely a continuation of the old one?

2d. Was the rejection of the transcript of the record of the Orphans' Court, which had been offered to show the illegitimacy of the now plaintiffs, the sisters of George T. Crawford, rightly rejected?

Page 82 U. S. 55

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