
    APPLETON et al. v. SMELSER et al.
    (Circuit Court of Appeals, Fifth Circuit.
    February 20, 1894.)
    No. 198.
    Appeal — Decision-—MoDis’ioATiojr op Decree.
    A demurrer for want of equity and for multifariousness, which, in the opinion of the appellate court, should have been sustained, and the bill dismissed without prejudice, was overruled by the court below, and thereafter a. hearing was had, in which complainants produced evidence, indicating equities which entitled them to the relief prayed. The court, however, instead of permitting an amendment, then entered a decree sustaining the demurrer, and .finally dismissing the bill. 'Held, that the only relief to be afforded on ajipoal was to cause the decree to be amended so as to dismiss without prejudice.
    Appeal from üie Circuit Court of the United States for the Eastern District of Texas.
    In Equity. Bill brought by Minnie M. Appleton, T. J. Appleton, and James M. Strong against J. H. Smelser, B. T. Estes, and the Bowie Lumber Company to recover the value of timber alleged to have been wrongfully cut from lands in which complainants have an interest, and for partition of such lands. The demurrer was at first overruled, but after evidence was taken, and a hearing had, the demurrer was sustained, and the bill finally dismissed, from which decree the complainants appeal.
    F. M. Henry and 35. B. Kruttschnitt, for appellants.
    Charles S. Todd and H. 0. Hynson, for appellees.
    Before PARDEE and McCORMIOK, Circuit Judges.
   PARDEE, Circuit Judge.

The appellants, complainants in the court below, brought their bill against the defendants, J. H. Smelser, B. T. Estes, and the Bowie Lumber Company, wherein they allege that the complainants were the legal and equitable owners of one undivided two-thirds of a large; tract of land; that the defendant B. T. Estes was the legal owner of the remaining undivided third; that the defendant J. II. Hmelser unlawfully entered upon the said tract of land, and sold to ihe defendant the Bowie Lumber Company all the timber standing and growing upon the same, and unlawfully entered into a conspiracy with the said lumber company for the purpose of wrongfully cutting down, and carrying away from and off the said tract of land, all the said timber; and that, in pursuance thereof, the said defendants Smelser and the Bowie Lumber Company had cut down and carried away from said tract of land an aggregate amount of 21,000,000 feet of timber, which they had converted to their own use. In said bill, complainants further allege that they have a right to recover judgment against the said Smelser and the Bowie Lumber Company for two-ihirds of the value of said 21,000,000 feet of timber; that the said Smelser and the Bowie Lumber Company are now in possession of said tract of land, and are con tinning to commit waste by cutting down and carrying away timber, etc.; and, finally, that the said defendants Smelser and the Bowie Lumber Company are setting up some pretended claim of own-ersbip to said tract of land, and a right to cut and carry away the timber. The prayer of the bill is for a partition and division of all the said tract of land between the complainants and the defendant B. T. Estes, in accordance with their respective rights and title; that commissioners be appointed to make such division and partition; and, further, that an account be taken and stated of the value of the trees and timber cut and carried away from off said tract of land by the defendants Smelser and the Bowie Lumber Company, and for a judgment and decree against the said Smelser and the Bowie Lumber Company for two-thirds of the value of the timber cut and carried away from said tract of land.

The defendants Smelser and the Bowie Lumber Company filed a demurrer to the bill for want of equity and multifariousness. This demurrer, on argument, was overruled, and thereupon the defendant B. T. Estes answered, admitting himself to be the legal owner of one undivided one-third of the tract of land in question, and further admitting that he had been paid for his share of the timber removed. The defendants Smelser and the Bowie Lumber Company answered, setting up title to the one undivided two-thirds of the tract of land claimed bv complainants, and putting at issue all the material aver-ments of the bill. Replication was duly filed, an examiner appointed, and evidence taken. The evidence taken shows that any title which the complainants may have to the land in controversy is equitable, and develops a case in which, if the complainants maintain their equitable title, they are, in equity, entitled to relief as against all the defendants to the bill. On final hearing, the court entered the following decree:

“This cause coming on to be heard upon the defendants’ demurrer to plaintiffs’ bill, and after hearing arguments qf counsel and duly considering said demurrer, the court is of the opinion that the demurrer should be sustained. It is therefore ordered, adjudged, and decreed by the court that the defendants’ demurrer to plaintiffs’ bill be in all things sustained, that plaintiffs’ bill filed in this cause be dismissed, that the defendants recover their costs, and that the plaintiffs be adjudged to pay all costs incurred in this cause, for which let this execution issue.”

From this decree the appellants prosecute this appeal, assigning numerous errors attacking the decree on the evidence, not necessary to recite.

In our opinion, the demurrer, when first heard, should have been . sustained on the ground assigned, and the bill, unless amended under leave of the court so as to present a case entitling the complainants to equitable relief, should have been dismissed without prejudice. As this was not done, but, on the contrary, the demurrer was overruled, and evidence was taken which, as we have noticed, developed equities in the complainants, the court, on the hearing, might, still have permitted the complainants to amend on such terms as to the court seemed just, or have dismissed the complainants’ bill, with costs, but without prejudice. As the case is presented in this court, the only relief which, in our opinion, can be granted to the appellants, is to cause the decree appealed from to be so amended as not to prejudice the complainants in the future prosecution of any rights they may have in the premises. See Buzard v. Houston, 119 U. S. 347, 7 Sup. Ct. 249.

The decree appealed from is reversed, and the cause remanded to the court below, with instructions to enter a decree dismissing the complainants’ bill for want of jurisdiction, and without prejudice.  