
    Smith vs. Hornback.
    June 12.
    
      The party against whom a judgment of eviction has been rendered, may, at a subsequent term, obtain an order for the appointment of commissioners under the occupying claimant law ; but not without notice to the opposite party, or his being present in court.
    
    Statement of the case.
   Opinion of the Court.

THIS is a writ of error to a judgment obtained by the defendant in error, upon the report of commissioners under the occupying claimant law, for a balance reported in their favor against the plaintiff.

The judgment of eviction was rendered in 1804, and the order appointing the commissioners was not made until 1818. The order was made upon the application of the defendant, and there is nothing in the record to show that the plaintiff was in court, or that he had any notice that such an application would be made. This was clearly erroneous. The party against whom a judgment of eviction is rendered, may, no doubt, obtain an order appointing commissioners to value the improvements, at a term subsequent to the rendition of the judgment of eviction; but it can be done with propriety only, where the opposite party is present in court, or has had notice of the time of applying for the order.

The order appointing the commissioners, together with all subsequent proceedings thereon, must be reversed, annulled and set aside, and the plaintiffs in error recover their costs in this court.  