Ayres v. Carver (1854)
In Ayres v. Carver (1854) 58 U.S. 591, the complainant sought to establish an equitable title to large tracts of public lands in the State of Mississippi which had been laid off in townships, ranges, and sections.
He alleged that he had offered to comply with the law providing for the entry and purchase at private sale of the land as undisposed-of public land, but was prevented from making the entries and obtaining the necessary certificates by the illegal and unwarranted acts of the register at the land office.
The suit was filed against the defendants, who constituted all those who had subsequently entered and paid for separate tracts of the land, and to whom patents had been issued.
Plaintiff alleged that the defendants were too numerous to be brought before the court in a single action, and asked to be permitted to prosecute suit against all of them by joining only a few.
In that case the Court said:
"Without intending to express any definite opinion in this matter, we must say that it is difficult to see any interest or estate in common among these several defendants that would authorize the rights of the absent parties to be represented in the litigation by those upon whom process has been served, and who have appeared to defend the suit. Their title to the land claimed, by the complainant, is separate and independent, without anything in common, it would seem, that could have the effect to make a decree against one, binding upon the others, or even require them to join in the defense."
The Supreme Court said in "both the original and cross-bill constitute one suit," and ought to be heard at the same time.
Consequently, "any decision or decree in the proceedings upon the cross-bill is not a final decree in the suit, and . . . not the subject of an appeal to this court. . . . The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal brings up all the proceedings for re-examination, when the party aggrieved by any determination in respect to the cross-bill has the opportunity to review it, as in the case of any other interlocutory proceeding in the case."