Statement of the case. 4. Because the appeal was not seasonably prosecuted. 5. Because the transcript of the record was incomplete. Comparing the reasons now assigned (see supra, p. 754) by Messrs. Cutting & Stone, on the regular calling of the case, for refusing to hear, with those just mentioned as assigned two years ago, by other counsel, in advance of regular call, on a motion to dismiss, the reader will perceive that they are in effect, except in the fifth one, the same reasons. And if the court on the mere motion to dismiss had deemed it best to take up and consider all the five reasons on that motion assigned, and fully and finally to dispose of each one-the fact that they had refused to dismiss the case would have been, of course, a bar to a further presentation of any of those same reasons now: as a cause for declining to hear it. But they did not deem this best. They considered the 1st, 3d, and 5th of the reasons, in the order in which they stand just preceding. Considering them, they declared them not well founded: holding 1st. That the decree dated from 7th January, 1858, and not from the prior date of June 5th, 1857. 3d. That a citation was unnecessary. 5th. That the transcript certified by the district attorney was sufficient. But on the 2d and 4th reasons assigned they said nothing: and remarked in conclusion as follows: "In view of the whole case our conclusion is that the motion to dismiss the appeal must be overruled. Effect of the motion if granted would be to leave the decree below in full force and unreversed; which is a result that at present we are not prepared to sanction. When the cause comes up upon its merits we shall desire to hear the counsel on the question whether there is any valid decree in the case, and if not as to what will be the proper directions to be given in the cause. Those questions are not involved in the motion to dismiss." The case had now "come up upon its merits;" when, interpreting the old case "as really nothing more than a declaration that the court were not then prepared to pass finally Opinion of the court. upon the rights of the parties," the counsel for the appellee put forward all the old points again. Those already distinctly passed upon, the court did not, however, consider open. The second one it considered as disposed of by what was said about the first. And, disincumbered of a quantity of irrelative matter, by which they were surrounded and confused, the questions now before the court were: 1. Whether under the circumstances of this case the appeal, if a final decree, and legally taken and allowed, had been ineffective for want of seasonable prosecution; the general rule being confessedly that the transcript must be filed here and the case docketed at the term next succeeding the appeal? 2. If the appeal had not become ineffective, how did the claim stand upon merits? 3. Whether, if the decree was invalid and void, it had such vitality as that this court would sustain an appeal upon it, and reform and correct it. Messrs. Black and Goold, for the United States. Mr. Justice CLIFFORD delivered the opinion of the court. Claim of the appellee, as described in his petition to the land commissioners, was for a tract of land situated in California called Panoche Grande, of the extent of four square leagues, and he alleged that the tract was granted to him, in the year 1844, by Governor Manuel Micheltorena. Unable to exhibit his title-papers, as required by the act of Congress upon the subject, he relied upon parol proof to show their existence, loss, and contents. Commissioners rejected the claim, and the claimant appealed to the District Court, where the claim for the whole tract was confirmed. Final decree, as amended, was entered on the fifth day of February, 1858; and on the twenty-fifth day of August, 1862, the appeal of the United States was allowed. 1. Appellants insist that the claim is utterly without merit, and that the decree of the District Court should be reversed. On the other hand, the claimant denies that this court has Opinion of the court. jurisdiction of the cause, and contends that the appeal should be dismissed. Principal difficulty in the case grows out of certain proceedings in the cause, which have taken place since it first made its appearance in this court. Docket entries for the December Term, 1858, show that the case was first presented here at that term by the claimant, as an appeal not prosecuted, and that it was, on the production of the record, on his motion, dismissed in conformity to the rules of court for the want of prosecution. Mandate of the court dismissing the appeal was, on the eighteenth day of March following, delivered to the assignee of the claimant. 2. Nothing further was done in the cause in this court until the December Term, 1859, when the attorney-general filed a motion to rescind the decree dismissing the cause, and to revoke the mandate, basing the motion upon the ground that the decree and mandate had both been procured by misrepresentation and fraud. Minutes of the clerk, also, show that he filed his motion on the twenty-seventh day of January, 1860, and that the claimant, on the second day of March following, filed three other motions. First motion of the claimant was for mandamus to the District Court, to compel the judge to file the mandate and permit the execution of the decree confirming the claim. Second motion was for mandamus to compel the District Court to dismiss an application before it to open the decree and grant a rehearing. Third motion was for mandamus to compel the surveyor-general to survey the land confirmed by the decree. All those motions were heard at the same time, and the court overruled the several motions of the claimant, and entered a decree rescinding the decree dismissing the appeal, and revoked and cancelled the mandate as moved by the attorney-general.* Affidavits offered showed that no appeal had been taken by the United States, and that the statement that such an order had been made as was exhibited in the transcript and filed in the case was false. They showed not only that the United States had not appealed, but that a United States v. Gomez, 23 Howard, 326. Opinion of the court. motion filed by their special counsel for a rehearing was still pending in the District Court. Decision of the court, therefore, was, that the appeal was not before the court when the cause was docketed and dismissed. 3. Next appearance of the cause here was at the December Term, 1863, which is the appeal now before the court. Record was filed and the cause docketed on the twenty-ninth day of February, 1864; and on the thirty-first day of March following the claimant filed a motion to dismiss the appeal, because, as therein alleged, this court had no jurisdiction "to hear and determine the same." 1. Because the five years within which an appeal can be taken, had expired before the appeal was claimed and allowed. 2. Because the entry of the appeal was made without authority, and had been set aside. 3. Because there was no citation. 4. Because the appeal was not seasonably prosecuted. 5. Because the transcript of the record was incomplete. Parties were heard upon that motion, and on the eighteenth day of April, of the same year, it was unanimously overruled.* 4. Coming to the present term of the court, the docket entries show that the motion under consideration was filed by the claimant on the ninth day of February last. He moved the court to strike out certain matters printed in the record, and requested the court to determine the fourth cause assigned in the motion of the preceding term for the dismissal of the cause, which, as he alleges, was not noticed, considered, or decided, when the motion was overruled and denied. Both branches of the motion were subsequently argued by counsel, and on the twenty-sixth day of February last the motion was overruled; but the Chief Justice, in announcing the result, remarked that the question of jurisdiction would be open when the cause should be argued upon the merits. Since that time, the cause has been reached in the regular call of the docket, and has been fully argued on both sides. Claimant still denies the jurisdiction of the court, and the * United States v. Gomez, 1 Wallace, 698. Opinion of the court. counsel have reargued all the questions of jurisdiction presented for decision in the original motion to dismiss. 5. Three of those questions, to wit, the first, third, and fifth, were carefully examined and decided by this court during the same term in which the motion was filed, and it is only necessary to refer to that decision as the final determination of the court.* Special mention was not made of the second question presented in the motion, because what was said by the court, in disposing of the first question, rendered any further remarks upon that subject unnecessary. Express statement of the opinion is, that the appeal to this court was allowed on the day therein specified. But the suggestion is, that the court did not decide the fourth question presented for decision, and the suggestion, so far as it applies to the opinion of the court, is certainly well founded. Fourth objection to the jurisdiction of the court was, that the appeal, even if legally taken and allowed, became null and void for the want of seasonable prosecution. General rule, as established by repeated decisions, undoubtedly is, that the transcript must be filed here, and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction.† Argument upon that subject is unnecessary, as the rule has been reaffirmed at this term in an opinion delivered by the Chief Justice. Unless the case, therefore, falls within some exception to the general rule of practice, as derived from the act of Congress allowing appeals, the motion of the claimant must prevail. 6. Certain exceptions to that general rule are recognized and allowed, which are as well established as the rule itself. They are admitted as indispensable limitations to guard against fraud and circumvention, and to prevent a failure of justice. Where the appellant, having seasonably procured the allowance of the appeal, is prevented from obtaining the transcript by the fraud of the other party, or by the order * United States v. Gomez, 1 Wallace, 698. |
