text:
    Jose Argote Villabolos, Marie Rose, and Francois Felix, Marquis de Fougeres, Appellants, v. The United States.
    JBy the act of May 23d, 1828 (4 Statutes at Large, 284), relating to private land, claims in Florida, appeals from the' Superior CoiJrt of the Territory of Florida are governed by the laws of 1789 and Í8U3.
    Therefore, where an appeal was not madfe' in open court, and at the term at which the final decree was passed, a citation was necessary, which must be signed by a judge, and not by the clerk. See United States v. Hodge, 3 How. 534.
    The act of 1828, above mentioned, allowed appeals to be prosecuted within four months, and placed them, in other respects, upon the same footing with writs of error under the act of 1803. Writs, of error' and citations are returnable to the term of the appellate court next following; and unless the writ and citation are both served before the term, the case is not removed to the appellate court.
    Consequently, where there was only an entry of an appeal in tne clerk’s office, and no citation served within four months, the.appeal was not regularly brought up, and must be-dismissed on motion.
    This was an appeal from the Superior Court of East Florida.
    'The case being dismissed for want of jurisdiction, it is unnecessary-to do more than refer to the circumstances, which are fully stated in the opinion of the court.

      Mr. Mason; then Attorney-General, had moved at a preceding term to dismiss this case, upon the ground of its being irregularly brought up.
    It was now argued by Mr. Clifford, Attorney-General, for the motion, and Mr. Yulee, against it.

      Mr. Clifford, for the motion.
    The points relied on by the United States for dismissal of the appeal in this case aré, —
    1st. That there is no citation issued according to law ; the citation in the record being signed by the clerk of the Superior Court of East Florida instead oí the judge, in pursuance of the twenty-second section of the Judiciary Act.
    2d. That there is no allowance of the appeal.
    1st. The counsel of the appellants contends, that the citation is signed according to the practice of the Territorial courts of Florida, which must govern this question. It is; however, submitted, that the practice of these cóurts does not afford the rule to govern appeals in land cases under the special jurisdiction, with respect to them, conferred on the judge of the Superior Court of East Florida. -

      A slight examination of the acts of Congress on the subject will satisfactorily demonstrate this proposition.
    By the sixth section of the act of the 23d May, 1828 (4 Statutes at Large, 284), it is provided, that certain claims to- land within the-.Territory of Florida shall be received and adjudicated by the judge of the Superior Court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge and claimants in the State of Missouri, by act of Congress, approved 26th May, 1824,-entitled “ An act enabling the claimants to lands within the limits of the State of Missouri, and Territory of Arkansas, to institute proceedings.ito try the validity of their claims.”
    And by the seventh section it is enacted, that it shall be lawful for the claimants to land as aforesaid to take an. appeal, as directed in the act aforesaid, from the decision of the judge of the district to the Supreme Court of the United States, within four months after the decision shall be pronounced.
    And by the twelfth section it is enacted, that the petitions were to be filed within one year from the passage of the act; and if, on account of the neglect or delay of the claimant, they should not be prosecuted to a final decision within two years, they were for ever barred both at law and in equity..
    A subsequent act was passed on the 26th May, 1830 (4 Statutes at Large, 406), which, by its fourth section, in effect revived the act of 1828.
    It was, however, under the act of 1828 that the petition in this case was filed; and it is clear, beyond all controversy, that the forms of proceeding-were to be the same as those prescribed to the district judge and claimants in the State of Missouri, by the act of 1824, hereinafter mentioned.
    The act of 1824 (4 Statutes at Large, 52), the rules of proceeding under which were made the rules of proceeding in the Florida cases, by its first section enacts, that it should be lawful for any person claiming lands in the State of Missouri, by virtue of any French or Spanish grant, concession, warrant, or order of sbrvey, “ to present a petition to the District Court of Missouri,” setting forth their claims. The second section provides, that the proceedings are to be conducted according to the rules of a.court of equity, and that “ in all cases the party against whom the judgment or decree of the said District Court may be finally given shall be entitled to an appeal within one year from the time of its rendition to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the parties ; and should no appeal be

      At the time this act passed, the State of Missouri was not embraced within any circuit; but the federal jurisdiction was exercised by the district judge, under the act of the 16th March, 1822 (3 Statutes at Large, 653), entitled “ An act to provide for the due execution of the laws of the United States within the State of Missouri, and for the establishment of a District Court therein.” By the second section, the State of Missouri was created á district, with one judge, to be called the district judge, who should “ in all things have and exercise the same jurisdiction and powers which were by law given to- the judge of the Kentucky district” under the Judiciary Act and the act of the 2d March, 1793, being the act in addition ,to the Judiciary Act.
    The tenth section of the Judiciary Act (1 Statutes at Large, 77) prescribes the mode in which appeals were to be taken from the District Court of Kentucky to the Supreme Court, as follows : — “ And writs of error and appeals shall lie from decisions therein to the Supreme Court, in the same causes as from a Circuit Court to the Supreme Court, and under the same regulations.”
    It is clear", therefore, that citations, in "the case of appeals from the District Court of Kentucky, were subject to the rules prescribed by the twenty-second section of the Judiciary Act; that the rules applicable to Kentucky were adopted for Missouri ; and that the judge of the Superior Court of Florida was to adjudge these land cases according to the forms; rules,, regulations, conditions, restrictions, and limitations prescribed to the district judge and claimants in Missouri. The legislation of Congress on the subject is plain and distinct, as it seems to me, and the local practice of Florida has nothing to do with the question, and furnishes no guide whatever to regulate the proceedings.
    It therefore appears to me that the case of the United States v. Hodge, 3 Howard, 534, is directly in. point.
    2d. No appeal was taken in open court at the term when the decree was made rejecting the claim, or at. any other time. The claim was rejected 10th September, 1838. On the 25th November following, the solicitor of the appellants filed in the clerk’s office a notice of appeal, but no allowance thereof was ever made.
    It is insisted that a notice thus filed in the clerk’s office, unaccompanied by any other act of the party, and without the knowledge either of the opposing party or of the comt, and without any approval by the judge before "whom the cause was tried, cannot be regarded as an appeal effectually taken. It carry up the case for revision. It is not denied that the right of appeal, when claimed in open court during the term when the cause was tried, is an absolute right, and one which the court has' no power to deny ; but when subsequently claimed in vacation, it must be approved or allowed by the court, otherwise it might be resorted to for purposes merely wanton, or for delay, and would operate as a surprise upon the opposite party. ' Yeaton v. Lenox, 7 Peters, 220.
    The appeal, under the circumstances of this case," was not prosecuted in due time, but múst be considered as having been abandoned before the citation was issued."
    It is reasonable to conclude, after a delay of more than fivé years, that the party had waived any right which he acquired by filing the notice of appeal in the office of the clerk of the court. Whatever may be' the effect of a notice thus filed, it cannot remain available indefinitely. The appeal must be claimed and allowed within the time prescribed by law. The mere filing of the notice within the time allowed to take the ' appeal is insufficient to secure the right, unless the appeal be perfected within a reasonable time. The delay of more than five years raises the presumption that the right, to appeal had been abandoned, or waived, before the citation was issued, or > that the notice was not filed in good faith.
    If the party may assert the right' in this case, after more than five years have elapsed since the notice was filed, when would the right to prosecute the appeal cease ? The practice, if sustained, would introduce great, looseness into legal proceedings, and create confusion and uncertainty in the rights of property over which such a notice of appeal was permitted to hang. It is often the main purpose of an appeal to secure a new trial, which it is always desirable to have during the lifetime of the witnesses-who testified in the court below. If this practice be sustained, a party might purposely defer his appeal, and wait the events which would deprive' his adversary of the testimony upon which he had relied in the. former trial.
    There must be some limit to the period within which the appeal may be prosecuted. It will fee found, upon examination, that, in the Florida cases heretofore brought up for revision, the appeal in "every instance was in fact prayed for in open court, and in presence of the opposing party. In such cases no citation is necessary, and it was wholly immaterial ’ whether the citation was signed according to law, or issued by the clerk. Moreover, in those cases, the opposing counsel having entered their appearance, the defect was cured. It is clear, to my .mind, that no aid can- be drawn from those precedents to sustain -the present proceedings. ' It appears to be well set-tied, that no citation is necessary when the appeal is prayed for and allowed in open court. The San Pedro, 2 Wheat. 142 ; Reily v. Lamar, 2 Cranch, 349 ; United States v. Hooe, 3 Cranch, 79.
    It was not my intention to waive any of the rights of the United States in this case, and I have so apprised the counsel, since the printed argument of the appellants was filed. What I intended to say in the argument, I have now to repeat, and it is, that when the appeal is regularly allowed by the presiding judge within the period prescribed by law, a legal citation may issue and be served after that time, provided it be at least thirty days before the return-day of the writ of error.
    I have also to. refer to Parish v. Ellis, 16 Petérs, 451.

      Mr. Yulee, against the motion to dismiss.
    The objections in this case are very technical. .
    1. That the' citation does not conform to the 22d section of the Judiciary Act of 1789, upon the force of which the case of United States v. Hodge, 3 Howard, 534, was decided.
    The act cited has no application to the present case, because it possessed no obligation upon the court from which the record comes.
    The appeal comes neither from a District nor from a Circuit Court of the United States, to which, alone, the 22d section applies.
    The Superior Court of Florida was a legislative, not a con- . stitutional, court. It composed no part of the federal judicature, but was simply a Territorial court, for territorial purposes. Its powers were defined by special enactment of Congress, and within the scope of those powers the Territorial legislature regulated its practice.
    No appeal was authorized from the Superior Court of Florida to the Supreme Court of the United States. ■ From the Court of Appeals of the Territory only could appeals be made to the Supreme Court. See the organization of the judicial system of Florida, Act of 26th May, 1824, 4 Statutes at Large, 45.
    No general- laws of the United States had force within the Territorial limits, unless expressly extended to that Territory by Congress.
    The laws of the United States in force in Florida will be found specified in 3 Statutes at Large, 657. - .
    The 22d section of the act cited was neve rconsidered as of force in Florida, because not applicable to our judicial system, especially so far as the Superior Court was concerned:
    The process acts of the United States were, ■ by some, thought to extend there; but this was not a settled, opinion. The citation, however, in this case, conforms to the process act.
    The process of the Superior Courts of Florida was regulated by the legislature of that Territory. See Act of 1832, Duval’s Compilation of the Laws of Florida, 91.
    The citation in this case conforms to that prescription, and was the same which was used in appeals from the Superior Court to the Court of Appeals (the highest tribunal) in Florida.
    The act of 1828, conferring upon the Superior Courts special' jurisdiction of land claims, and authorizing appeals, direct,s-mo form or style of process. The court very naturally and correctly adopted the form prescribed by the legislature of Florida, and by the process act of the United States, and which was used in cases of appeals to the highest Territorial tribunal.
    The propriety of this course stands conceded by the United Spates, from which party an objection comes now, at this late stage, with very ill grace.
    It happens that the first appeal taken in these Florida land causes was by the United States, and was brought up upon a citation issued at the instance of the United States, in the precise form used in this, cr se. And that the same form has been invariably used in all the Florida land causes, from the commencement to the present time. A large majority of these appeals were at the instance of the Unite'd States. See the Records.
    The court would now be required to reject that which had been sanctioned by its own practice, and by the assent and direct adoption of the United States, throughout the course of these cases, commencing, Ubelieve, in 1832. This certainly would be pressing a merely formal objection very far.
    But, if I am not mistaken, the first motion filed in this cause did not object to the form of the citation. Not having access to the motion I cannot be certain ; but, if I am correct in my impression, the objection to the citation, as well as the objection presented in the second point, may be regarded as having been waived. See McDonogh v. Millaudon, 3 Howard, 693.
    Although unnecessary to this case, it may be questioned whether the process act . did not virtually repeal the form and style prescribed in the 22d section of the act of 1789 for citations ; that is to say, if a citation' may be regarded as being a “ writ ” or “ process ” within the meaning of the act of 1792, as I think it may be.
    2. The next objection is, that the appeal was never granted by the court.
    Whether it was or not I am not prepared to' sayjj. and if the court consider the allowance of the appeal material, ! will ask a certiorari, presuming that all was done in the court below which was necessary to justify citation, though omitted from the transcript of the record forwarded here.
    But an allowance of the appeal by the court was totally unnecessary.-
    The appeal was a right of the party. The court had no power to refuse, and being without any judicial discretion in the matter, there was neither occasion nor propriety in any application to it to grant.
    The statute confers upon the party the peremptory right of appeal.
    See act of 1828, se.c. 7, Statutes at Large, vol. 4, page 285; and act of 1824, sec. 3, same volume of laws, page 53.
    If a party chose to appeal, and the court refused to send up the record, the Supreme Court would undoubtedly have allowed a mandamus to coerce it.
    All that is requisite in the case of an appeal is that enough be done to remove the record. Enough was done for this purpose when the party signified his. adoption of the right of appeal allowed by the statute. The statute had made the allowance; an allowance by the court was supererogation.
    That such was the impression upon all sides heretofore will be seen by reference to the record in the very last Florida case acted upon in this court, to wit, the case of Darley’s Heirs, decided at the last term. It will be seen in "that case, that, although the appeal was taken in term time and in open court by the United States district attorney, no application was made to the court for áh allowance of .the appeal, and no allowance was granted.
    In this case, the appeal was taken in vacation, and the mode ■pursued was the only one practicable.
    In fact, the requirement of an allowance by the court would defeat the purpose of the law. The party was allowed four months, to decide his mind as to an appeal. The judge was almost continually in motion over a very extensive circuit, and in attendance upon the Court of Appeals at Tallahassee. A term for trial of land causes occurred only once in- the year, and the effect of a requirement such as proposed would have been to send a party in chase of the judge all over the Territory, and to abridge very materially the time intended to be allowed for considering his interest and deciding upon appeal.
    3. That,the appeal was not prosecuted in due time.
    This objection, I understand from the Attorney-General, has been abandoned by him. It requires, therefore, no.reply.
    But to prevent any impression that the parties interested were indifferent'as to their appeal, I will state, as the reason of the delay in bringing the case up, that the proprietors of the grant reside in a foreign country (France); that about the date of thq, appeal, the counsel and agent of the claimants, stricken by the hand of God, had become imbecile 'in mind and incapable of business; and that it was not until long afterwards . the parties in France became sufficiently apprised of his condition to make other provision for their interests.
    In reply to the Attorney-General, I have further to say, —
    1. It is conceded that the judge of the Superior Court was required, as stated by the Attorney-General, to receive and adjudicate claims to land according to the rules, &c., prescribed to the district judge of Missouri; but it does not by any means result from this, that in citing an appellee the clerk was to use any other form of process than one appropriate to the court.

      2. No such delay or injury, as suggested by the Attorney-General, could result to the’ appellee from the mode of taking an appeal adopted in this case. The party interested can always, at the end of four months (the time allowed for appeal), ascertain if an appeal has been made; and if it has, the 30th rule of the Supreme Court .will insure an early docketing and disposal. In this case, .the laches of the United States is without excuse ; while the delay on the part of the appellant was the result of misfortune.
    The case in 16 Peters was from the Court of Appeals, and has no application.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an appeal from the Superior Court of East Florida.

It appears that on the 18th of April, 1829, a petition was filed by the appellants in the Superior Court, claiming title to certain lands under a Spanish grant. The’ district attorney answered, denying the validity of the claim,, and testimony was taken on both sides, and the case proceeded to final hearing. And on the 10th of September, 1838, the court decreed that the claim was not valid, and that it be rejected.

No appeal was. taken at the time, but afterwards, on the 25th of November, in the same year, an appeal was filed in the clerk’s office by the solicitor for the appellants. No citation, however, issued, nor was any further step taken in this appeal until August 9, 1844, when a citation issued, signed by the clerk of the Superior Court, which, on the 13th of the same month was served on the district attorney. And under this appeal and citation the record was filed by the appellants in this court, on the 12th day of December, 1844.

A motion has been made on the part of the United States to dismiss this case,.— 1st, upon the ground that the citation is not signed by the judge .; and 2d, that the appeal was not taken within the time limited by law.

The proceedings in the Superior Court of Florida were' had under the act of Congress of May 23, 1828. It has been urged in the argument for the appellant, that appeals to this court in such cases are not governed by the acts of 1789 and 1803, and may be brought up by a citation signed by the clerk. And it was suggested that such has been the usual mode of prosecuting appeals from the Superior Court of Florida, and sanctioned by the practice of this court.

With a view of ascertaining the practice upon this subject, we have caused the records in former cases to be examined; but no case has been discovered in which the appeal was taken in the clerk’s office, and the citation signed by the clerk. So far as the examination extended, all of the cases wére .brought here by appeals taken in open court. And if there are ,any cases like the present in which this court has treated the appeal as valid, they must have passed sub silentio and without having .attracted, in this, respect,- the- attention of the court. It is true, that, in all of the former cases from the Superior Court of Florida, the citation appears to have been signed by the clerk. But as. they were taken in open court, no citation was necessary under the acts of 1789 and 1803. It was so held in . the . casé of Yeaton v. Lenox, 7 Peters, 220. And these appeals were therefore regtilarly before the court, according to the last-mentioned acts of Congress, — the citations signed by the clerk being altogether unnecessary and unimportant. The question is, , therefore, now for the first time presented, whether such a citation is sufficient where the appeal is entered in the clerk’s office, and not taken in open court..

The laws of. Congress upon this subject are, unfortunately, a good deal complicated. But the view taken in the argument of the Attorney-General is undoubtedly the correct one. The sixth section of the act of 1828 provides that the proceedings in the Superior Court of Florida shall be according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed* to the district judge and claimants in the State of Missouri by the act of May 26, 1824; and the seventh section provides that the claimant may take an appeal as directed in the act aforesaid to the Supreme Court within four months after the decision shall- be pronounced. The District Court of Missouri, to which' the above-mentioned act of 1824 refers, was established by the act of March 16, 1822, and the second section of this act provides that it should in-all things have and exercise the same jurisdiction and powers which were by law given to the judge of the.Kentucky District under the. act of March 2, 1793. And the tenth section of the last-mentioned act directs that writs of error and appeals shall lie from the decisions of the District Court of. Kentucky to the Supreme Court in the same causes as from a Circuit Court, and under the same regulations. Thus, in order to determine how appeals must be prosecuted from the Superior Court of Florida, under the act of 1828, we are in the first place referred to the . law in relation to the District Court in the State of Missouri, and- that law refers us again to the act in-relation to the District Court of Kentucky, and that law in. express terms refers 'us t.o the laws regulating appeals from a Circuit Court of the United States, — that is to say, to the acts of 1789 and 1803. Appeals from the Superior Court of the Territory of Florida, therefore, are governed by these acts; and consequently the case of -The United States v. Hodge, 3 Howard, 534, is decisive against the present appeal. When the appeal is not made in open court, Snd at the term at-which the final decree is. passed, a bitatioh is necessary; The San Pedro, 2 Wheat. 142; and where necessary, the law requires it to-be signed by the judge ; and we have no power to receive an appeal in any othr er mode than that provided by law.

But if the citation had been properly signed, it is too late. By the act of 1828, the claimant must appeal within four months'; and the act of 1803 subjects appeals to the rules and regulations prescribed' by law in cases of writs of error. Now the -writ-of errords always returnable to the term of the appellate court next following the date of the writ; and the citation required by the act of 1.789 (which is a summons to the opposite party to appear) must be returnable to the same term, and unless the writ and citation are both served before the term, the case is not removed to the appellate court, and the writ, if returned afterwards, will be quashed. Lloyd v. Alexander, 1 Cranch, 365; Bailiff v. Tipping, 2 Cranch, 406; Wood v. Lide, 4. Cranch, 180 ; Pickett’s heirs v. Legerwood, 7 Peters, 144 ; and Yeaton v. Lenox and others, 8 Peters, 123. It follows that, where a citation is required in a case of appeal, it must, as in the writ of error, be issued and served on the opposite party before the term, of the appellate court , next after the appeal is entered. Yeaton v. Lenox, 7 Peters, 220. The entry of the appeal in the clerk’s office is analogous' to the issuing, a writ of error; it is returnable to the next term of the appellate court; and a citation to the opposite, party to appear is necessary. Here the entry of appeal was made in the clerk’s office within four months from'the date of t]ie decree, and therefore within the time limited -by law. The-citation might, upon such an entry, have been issued after the.expiration of the four months. But it must be issued and served before the term of this court next succeeding the entry of the appeal. And unless this is done, the case is not brought before this court. There was no such citation in the present case, and the entry in the clerk’s office, standing by itself, was not a removal of the case by appeal, according to the act of Congress. There was, therefore, no appeal within the time limited by law.

The construction of the act of 1828 contended for by the appellant would defeat its evident policy and intention. It was the object of the law to obtain a speedy settlement in the judicial tribunals of claims made under Spanish titles, many, of which were disputed by the United States, as unfounded or fraudulent. This is manifest from the whole scope of the law; and provisions are introducéd for the purpose of compelling the claimants to prosecute their claims to'final judgment without any unnecessary delay. And it was to accomplish this object, that, instead of limiting the time for appealing to the Supreme Court to five years, as in the act of 1803-, it is reduced to four months. But if this appeal can be maintained, there is no limitation in cases of this kind. For here, after filing his appeal in the clerk’s office, it has been suffered to remain there for nearly six years, without any citation to notify the district attorney that an appeal had been prayed, or taking any step to prosecute it. This entry without a citation was a mere nullity.

Upon both of the' grounds, therefore, above stated, the appeal must be dismissed.

Order.

. This cause came on to be heard on the transcript of the record from the Superior Court of the District of East Florida, and it appearing to the court here that this appeal is barred by the lapse of time, and that the citation is not signed as directed by the act of Congress, it is therefore now here considered and decreed by this court, that this cause be and the same is hereby dismissed, and that this cause be and the same is hereby remanded to the said Superior Court, to be proceeded in according to law and justice!


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    William C. Brashear, Plaintiff in error, v. John Y. Mason, Secretary of the Navy, Defendant.
    Under the joint resolutions of Congress, providing for the annexation of Texas to the United States,' the officers of the navy of Texas did not pass into the naval service of the United States. The transfer of the navy of Texas related exclusively to the ships of war and their armaments.
    A mandamus against thé Secretary of the Navy will not lie at the instance of an officer to enforce the payment of his pay.
    This case, was brought up, by Writ of error, from the Circuit Court of the United States for the District of Columbia! hold-en in and for the county of Washington.
    It was an application to the Circuit Court for a mandamus,, under circumstances which are thus stated by that court in its opinion.
    William C. Brashear petitioned the court for a rule on John Y: Mason, Secretary of the Navy of the United States, to show cause why a mandamus should not issue, commanding him, as Secretary of the Department of the Navy, to cause payment to the petitioner of his just dues as an officer in the navy for the time past since the annexation of Texas to the United States.
    The petitioner states, that, in pursuance of the constitution and laws of the republic of Texas, he was, on the 23d of June, 1845, by the then president of the said republic, commissioned as a commander in the navy of .the republic, and forthwith entered into service under orders from the department of war in Texas',* and continued in that service from the 23d of September, 1844, thenceforth, and was so in service when the joint resolution of the Congress of the United States passed for annexing Texas to the United States was approved, and when the said State of Texas was admitted into the Union and Confederacy of the United States of America, and was actually in service and a commander in the navy of Texas when the ship Austin, brigs Wharton and.Archer, and schooner San Bernard, armed vessels of war of and belonging to the Texan navy, were delivered over to the United States, under the terms and articles, of compact and agreement between the United States of America and the republic of Texas ; and as such he is advised that he is in good faith, and in accordance with the said articles of agreement, compact, and treaty of annexation, an officer in the navy, and entitled to his pay and- emoluments from the United States,
    The petitioner further states, that he never, has resigned his commission, nor been cashiered, nor dismissed; that he has regularly reported himself for duty under the said commission to the Secretary of the Navy of the United States, and has demanded his pay as an officer, but the Secretary of the Navy of. the United States has hitherto refused, and .yet refuses, to pay him, or to recognize him as an officer of the navy: He states
    further; that he is informed and advised by counsel learned in the law, that for his pay and. emoluments as an officer of the navy of Texas, transferred to the United States by the terms .of the annexation aforesaid, he is entitled to have and receive,. up. to the 1st of October, 1847, the sum of $2,100 ; whereof he has received from the treasury of the United States no more than the sum of $ 689.20, which was paid him by order of the Secretary of the Navy of the 19th of March, 1847. And he is also advised, that he is entitled to his continuing pay and rank as an officer in the navy of the United States, by virtue of the said agreement, compact, treaty,' and transfer before mentioned. - .
    Notwithstanding all which, the Secretary of the Navy of the United States refuses to order payment to him for the time past since the said annexation and transfer, or to recognize him as an officer in the navy of the United States.
    That part.of the second section of the joint resolution of the 1st March, 1845, for annexing Texas to the United States,. which is applicable to this case, is in the following, words : —
    “ Said State, when admitted into the Union, after ceding to the. United States' all public edifices, fortifications, barracks, ports and- harbours, navy and navy-yards, docks, magazines, arms, armaments, arid all other property and means pertaining to the public defence, belongirig to said republic of Texas, shall retain- all the public funds, debts, taxes, and dues of every kind, which, may belong to, or may be due and owing, said republic ; and shall also retain alb the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of the said republic of Texas; and the residue of said lands, after discharging the.said debts and liabilities, to be disposed of as the said State may direct; but in no event are said debts and liabilities to become a charge upon the government of the-United States.”
    *The Circuit Court overruled the motion for a mandamus, and rejected the prayer of the petition, to which judgment Brashear excepted, and upon this exception the case came up to this court.
    . It was argued by Mr. Bibb and Mr. Jones, for the plaintiff in error, and by Mr.' Clifford (Attorney-General), for the Secretary of the Navy.
    A portion of the argument on behalf of the plaintiff in error was as follows.

      Whether the applicant has a right to the money which he demands by his petition and motion depends upon the proper meaning and effect of that part of the convention for annexation and -union which relates to the cession by-Texas of her “ navy,” and the acceptance thereof by the United States.
    The proposition flowed from the. United States to Texas. Texas accepted, and made the cession and delivery, in compliance with her sense of the proposition ; and the United States accepted.
    The first question is, What is the sense in which this condition was presented by the United States, and the sense in which Texas accepted ?
    This may be solved by considering, first, the meaning of the word ■“ navy,” as established by general use ; second, by the circumstances of the parties proposing ; nd accepting ; third, by the conduct of the parties in acting under the convention immediately after it was ratified.
    1. As to the meaning established by use, “ navy ” is a mixed mode of speech, a complex idea, including the insensible, inert matter whereof the vessels of war are- composed ; also the armaments and equipments ; ■ and also the active, living bodies and minds necessary to give mobility, direction, utility, and efficiency to the vis inertice of the vessels and armaments.
    Inanimate matter cannot think, plan, protect, drive off, pursue, blockade, and give safe.convoy. Officers and sailors are indispensably necessary to make a navy.
    The idea of a navy'composed solely of véssels and guns, without officers and seamen, is as absurd as the idea of an army composed. solely of muskets; swords, pistols, and big 'guns,without officers and soldiers to Wield them.
    . The law of the United States entitled “ An act for the bet-' ter government.of the navy of the United States” (2 Statutes at Large, '45); contains forty-two articles to rule and govern the officers and privates in the navy of the United States, which is an authoritative definition, not to be gainsaid, that -officers and privates- are component parts of a navy. The law of "the navy is to govern the officers and the privates who compose the navy, npt to govern ships and guns, that cannot offend nor commit crimes, nor be the subjects of accusation before naval courts-martial.
    2. As to the circumstances of' the parties proposing the cession and making the cession of. the navy and navy-yards, docks, ports, and harbours, the United States, by their Constitution, had power “ to provide and maintain a navy ” ; their situation, interests, and duties imperiously demanded the execution of. that ■ power. The State of Texas,, if admitted into the Union., could no longer keep ships of war in time of peaee without the consent of Congress; and yet a navy would be essential to guard and protect the coasts and harbours of Texas after the union, as it had. been before the proposed conditions and guarantees for the union. The people and government of Texas could not, did not, understand the proposal, to cede. the navy to the United States as intended to destroy it, ■any more than that the proposal to cede the ports and harbours was intended by the'United States for the purpose of obstructing or- rendering them .useless. The natural sense in which they were presented,' understood, and -accepted was, that the navy, ports, and harbours were to be maintained, preserved, and used for their several and appropriate purposes.
    .But the circumstances under which the people and government of Texas were, in relation to their navy, so well known to public history-and to fame, forbid the idea that the. United States intended the proposal, or that Texas would have acceded to it, as containing a violation of the obligations due to the officers of the navy; who had So repeatedly, so gallantly, so gloriously, and so usefully fought the enemies of Texas, , beat off the foes who came to invade, pursued them into théir own ports and harbours, there blockaded them, and. levied contributions to assist the means of Texas in their war of independence. The many naval battles between the vessels of war of Texas and those bf Mexico, in . the year 1836, and after, in which, the navy of Texas fought against the very superior force of the Mexicans; always sustaining the honor of the flag, and adding new brilliancy to the lone star, were just foundations of national pride, as well as of national gratitude towards the nayy. The belief, that, by. the proposal for ceding the navy of Texas to-the United States,, the officers wotild have been deprived of their commissions and pay . in the navy so transferred, turned adrift to seek a. precarious subsistence in some other calling, for which their long and gallant services in the. navy of Texas had unfitted them, would of itself have been causé for rejecting the proposal on the . part of Texas. Such fell ingratitude would have tarnished the escutcheon of Texas. The words of the proposal, the circumstances of the parties to the. convention, the end proposed, left no ground for suspicion, that such an act of injustice ánd. ingratitude to the officers of the navy was concealed in the proposal made by the. United States.
    . 3. The conduct of the parties in acting.under the conven-, tion immediately after it was ratified. —: The government of Texas' issued an order to the' commander of the navy for delivery to the United States; the United States received the navy - officers, privates, and vessels, and kept them in service and pay for the time shown in the petition and the documents. Texas had no standing army, nor officers of a regular army upon permanent establishment. She had some companies of rangers enlisted as volunteers for the limited period of three months, not expired when Texas was admitted into the Union. These rangers, with the noted gallant Major Jack Hays at their head, were turned over to the command of General Taylor, served out the time for which they had been enrolled, and performed under his command eminent services well known to fame.
    Such were the actings and doings by the parties to this convention, when the mutual sense of its meaning was fresh in memory, and the faith of the treaty prevailed.
    The word “ navy,” as used in the Constitution of the United States, has never been supposed by any one to mean ships only. By established usage, and by various acts of Congress, ' “ navy ” comprehends both ships and men.
    There- is nothing .in the convention itself, nor in the circumstances attending the parties, nor in the end proposed, which requires that the terms of the convention should be understood in a confined, restrictive sense. On the contrary, all the circumstances unite in requiring the expressions to be taken in the most extensive sense. For surely the authors of the proposal, and the party accepting it, did use the word “ navy ” in its extensive sense, because it Was applied to -the existing navy, of Texas, known to be armed, officered, and manned ; known to have gloriously fought the battles of Texas, and kept in check the naval power of Mexico, which -nation had not then acknowledged the independence of Texas, but kept up the threat to subdue the spirit of the revolted province and subject it to the Mexican power.
    The counsel for the plaintiff in error then proceeded to show, from several other considerations, that the word “ navy ” must be construed to include officers and men.

      Mr. Clifford (Attorney-General), contra.,
    There are several views of this question, either of which, as it seems to me, is conclusive against him. He claims pay as an-officer of the United States navy.
    It is contended that the joint resolution of March, 1845, makes him such officer. The construction contended for by the petitioner is founded entirely on the meaning which he puts upon the word “ navy,” which in my judgment is entire-, ly erroneous, and cannot be sustained. The resolution contained the terms of a compact between two sovereign and independent States, and by its sesond condition clearly contemplated nothing more than an agreement as to the public property, means, resources, and liabilities of Texas. It was the public property, and that alone, which was embraced in that provision. Texas was to retain certain public property, and meet her own liabilities; all the residue of her means of public or national defence was to be “ ceded ” to the United States, — a term of grant evidently applicable to property_ and not to persons. No ingenuity can change the obvious meaning and sense of a law so plainly written.
    The condition, it will be observed, is confined to acts to be done by Texas, and not to duties to be assumed by the United States. Texas binds herself, by acceding to the terms of the resolution, to cede her navy and other public property. The petitioner held a commission under Texas, and had taken the oath of allegiance to her. This did not establish any such relation between the officer and the government as authorized the government to transfer him to the United States, into official responsibilities to which he had not assented, and to-which his commission did not bind him. Still less, can the Uhited States be held to have taken him into their service by that condition, which imposed on. them no duties. The construction contended for would be placing the United States in the attitude of proposing impossible conditions to the government of Texas, for how could Texas cede the services of her citizens ?"
    By a proviso in> the naval appropriation act of 4th August, 1842 (5 Statutes at Large, 500), it is declared, “ That, until otherwise ordered by Congress, the 'officers of the navy shall not be increased beyond the number in the respective grades-that were jn the service on the 1st day of January, 1842.” The construction contended for is inconsistent with this provision of law, and no implication arising under the resolution of March, 1845, can be held as repealing it. This test as to the intention of Congress is conclusive.
    But, further, the construction contended |br is wholly inconsistent with the power of appointment, which, by the Constitution, is vested in the President, by and with the . advice and consent of the Senate. It is unnecessary to consider any of the qualifications annexed to that provision of the Constitution, as it is very certain they can have no application to' the present case. It will not be disputed, that officers in the navy of the United States, under existing laws, must be appointed and commissioned by the President.
    Congress has no power, either by treaty or by act of ordinary legislation, to abrogate -this constitutional provision. It is presumed no authority can be found for the pretension,, that Congress can supersede the necessity of an appointment by the President, by and' with the advice and consent of the Senate, in order to constitute an officer in the navy of the United States •; and certainly no person can be entitled to pay as such, without a commission from the President, under the existing laws. Such a proposition, so subversive of the Constitution, ' cannot be seriously entertained.
    What was the remedy sought by the petitioner ? - It was, that the Circuit Court should issue a writ of mandamus, directing the Secretary of the Navy to pay a, sum of money to the petitioner, which he alleges is due to him as an officer of the United. States navy. At all times this remedy is used by the court with extreme caution, and never in a doubtful case; and only to compel the performance of a mere ministerial act, or to do some specific thing enjoined by law, in which the party has no discretion. .Surely this is not a case in which this power of the court should be exercised.
    The. petitioner has mistaken his remedy. Congress appropriates money for the pay of officers and men of. the United States navy; and the. right of an officer to pay attaches as a necessary consequence to the rank conferred by his commission. Has he established his rank ? Certainly not.
    But even if he has established his rank, the Secretary of the Navy can neither pay him nor withhold his pay; that is a question for the accounting officers' of the treasury, over whom, in' this respect, the navy department can assume no- .control. The sum stated by the petitioner as received by order of the Secretary of the Navy was paid out of the contingent fund of the department for services rendered by the petitioner, which might have been, performed by any citizen holding no commission in the navy. That fund is not. chargeable with the pay of officers and men, as is too. well known to require any'reference to the law. The appropriation for pay is.under the general superintendence of the Secretary of the Treasury, and no accoimt for such pay can be allowed, until it shall have been passed by the accounting officers in the last-named department. The sum paid to the petitioner was for services rendered in taking charge of the property of the United States, and.not as being due him as an. officer. .The petitioner’s account as presented shows this. The Secretary of the Navy expressly refused to recognize the petitioner as an officer of the navy of the United States. See Secretary’s'letter.
    The reasons assigned by thé Circuit Court for refusing the rule are so entirely satisfactory and conclusive, in the view which I take of the question, that I deem it wholly unnecessary to pursue the argument, and have only to append a copy of that opinion for the consideration of the court, and to ask their attention to the fact, which appears by the record, that Brashear’s commission in the Texas navy bears date subsequent to the passage of the joint resolution of Congress.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error to the Circuit Court held in and for the District of Columbia.

The plaintiff made application to the court below for a mandamus against the defendant, to compel the payment of $ 2100 arrearages of pay due him from the government as a commander in the navy of the United States, which application was founded on the following state of facts.

The plaintiff was appointed a commander in the navy of the republic of Texas on the 23d of September, 1844, and continued in its service down to the annexation of the republic to the United States, in pursuance of the joint resolutions of Congress, March 1, 1845, and until Texas was admitted into the Union as one of the States of the confederacy, and was in the actual service of that republic at the time when its navy, consisting of four vessels of war, was delivered over to the authorities of the United States, according to the terms of annexation.

The plaintiff insists,- that, according to the terms and conditions Of the compact between the two countries, on the transfer of the navy of Texas to the United States, and their acceptance of the same, he became an- officer of the United States navy, and entitled to his pay and emoluments as such.

He further states, that he had reported himself to the Secretary of the Navy for duty, and had demanded his pay of the same; but that the Secretary had refused to recognize him as an officer of the navy, or to make any payment to him as such.

The court below refused the mandamus,' and dismissed the application.

The case is now before us for review.

It is not pretended that there has been any stipulation, either by act of Congress or by treaty between this government and Texas, by which the officers of her navy were to become incorporated into the navy of the United States, as a consequence of the annexation; but it is supposed to result from a proper construction and understanding of one of the stipulations contained- in the second joint resolution of March. 1, 1845. The part material is as follows : —

“ Said State (Texas), when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports and harbours, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to Texas, Shall retain all the public funds,” &c. (5 Statutes at Large, p. 797.)

The argument is, that the term “navy” properly includes, not only the vessels of war, their armaments and equipments, but also the usual complement of officers and crew on board the respective vessels; and that it is in this sense the term is used, and should be understood, in the joint resolutions.

We think not, but, on the contrary, are of opinion that it relates exclusively to the ships of war and their armaments belonging to the naval establishment of .Texas, which, according to the compact, were to become the property of the United ■ States.

■ The two governments were not negotiating about persons holding public employments in Texas, or in respect to any place or provision for that class, on the. breaking up of the old government and its reconstruction for admission into the Union, but in respect to her public property, which' she was, generally, disabled from holding, under the Constitution of the United States, after her admission, as it fell under the jurisdiction and direction of the federal government;

The resolution provides for ceding to the United States all public edifices, fortifications, barracks, ports and harbours, navy and navy-yárds, docks, magazines, &c., and all other property and means pertaining to the public defence.

The phraseology is appropriate for the purpose of conveying the property of the one government to the other, but exceedingly inapt and unfortunate if intended to embrace persons or public officers, as contended for b.y the plaintiff.

The argument in favor of including the officers, of the navy of' Texas in the transfer of the ships might be urged with equal force by the officers and hands in charge of. the návyyard, or of those at the time in charge of the fortifications ; for the term “ navy,” in the connection in which it is used, no .more includes, ex vi termini, the officers and crew on.board, than the term “ navy yard ” includes the officers and hands in charge of that part of the public property, or the term “ fortifications ” includes the officers and soldiers of the republic engaged in manning them.

The construction contended for we think altogether inadmissible, and properly rejected by the court below.

We are also’ of opinion, that if the plaintiff had made out a title to his pay as an officer of the United States navy, a mandamus would not lie in the court below to enforce the payment.

The Constitution provides, that no money shall be drawn from the treasury but in consequence of appropriations made by law. (Art. I. § 9.) And it is declared by act of Congress (3 Statutes at Large, p. 689, § 3), that all moneys appropriated for the use of the war and navy departments shall be drawn from the treasury by warrants of the Secretary of the Treasury, upon the requisitions of the Secretaries of these departments, countersigned by the second comptroller.

And, by the act of 1817 (3 Statutes at Large, p. 367, §§ 8, 9), it is made the duty of the comptrollers to countersign the warrants only in cases when they shall be warranted by law. And all warrants drawn by the Secretary of the Treasury upon the treasurer shall specify the particular appropriations to which the same shall be charged •• and the moneys paid by virtue óf such warrants shall, in conformity therewith, be charged to such appropriations in the books kept by the comptrollers; and the sums appropriated for each branch of expenditure in the several departments shall be solely applied to the object for' which they are respectively appropriated, and.no others. (2 Statutes at Large, p. 535, § 1.)

Formerly, the moneys appropriated for the war and navy departments were placed in the treasury to the credit of the respective secretaries. That practice has been changed, and all the moneys in the treasury are in to the credit or in the custody of the treasurers, and. can be drawn out, as we have seen, only on the warrant of the Secretary of the Treasury, countersigned by the comptroller.

In the case of Mrs, Decatur v. Paulding (14 Peters, 497), it was held by this court that a mandamus would not lie from the Circuit Court of this District to the Secretary of the Navy to compel him to pay to the plaintiff a sum of money claimed to be due her as a pension under a resolution of Congress. There • was no question as to the amount due, if the plaintiff was properly entitled to the pension; and it was made to appear, in that case, affirmatively, on the application, that the pension fund was ample to satisfy the claim. The fund, also, was under the control of the Secretary, and the moneys payable on his own warrant.

Still the court refused to inquire into the merits of the claim of Mrs. D. to the pension, or to determine whether it was rightfully withheld or not by the Secretary, on the ground that the court below had no jurisdiction over the case, and, therefore, the question not properly before this court on the writ of error.

The court say, that the duty required of the Secretary by the resolution was to be performed by him as the head of one of the executive departments of the government, in the ordinary discharge of his official duties; that, in general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties ; that the head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion; and that the court could not by mandamus act directly upon the officer, and guide and control his judgment or discretion in matters committed to his care in the ordinary discharge of his official duties.

The court distinguish the case from Kendall v. The United States (12 Peters, 524), where there was a mandamus to enforce the performance of a mere ministerial act, not involving, on the part of the officer, the exercise of any judgment or discretion.

The principle of the case of Mrs. Decatur is decisive of the present one. The facts here are much stronger to illustrate the inconvenience and unfitness of the remedy.

Besides the duty of inquiring into and ascertaining the rate of compensation that may be due to the officers, under the laws of Congress, no payment can be made unless there has been an appropriation for the purpose. And if made, it may have become already exhausted, or prior requisitions may have been issued sufficient to exhaust it.

The Secretary is obliged to inquire into the condition of the fund, and the claims already charged upon it, in order to ascertain if there is, money enough to pay all the accruing demands, and if not enough, how it shall be apportioned among the parties entitled to it.

These are important duties, calling for the exercise of judgment and discretion on the part of the officer, and in which the general' creditors of the government, to the payment of whose demands the particular fund is applicable, are interested, as well as the government itself. At most, the Secretary is but a trustee of the fund for the benefit of all those who have claims chargeable upon it, and, like other trustees, is bound to administer it with a view to the rights and interests of all concerned.

It will not do to say, that the result of the proceeding by mandamus would show the title of the relator to his pay, the amount, and .whether there were any moneys in the treasury applicable to the demand; for, upon this ground, any creditor of the government would be enabled to enforce his claim against it, through the head of the proper department, by means of this writ, and the proceeding by mandamus would become as common, in the enforcement of demands upon the government, as the action of assumpsit to. enforce like demands against individuals.

For these reasons, we think the writ of mandamus would not lie in the case, and therefore, also, properly refused by the court below, and that the judgment should be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is- now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the samé is hereby affirmed.


author: Mr. Chief Justice TANEY

text:
    The Heirs of C. and M. de Armas, Appellants, v. The United States.
    An order of the District Court, sustaining a demurrer to a petition because it was multifarious, and because the nameB of the persons claiming or in possession of the land which the petitioners alleged to belong to them were not set forth, was not a final judgment or decree from which an appeal lies to this court.
    This case came up by appeal from the District Court of the United States for the District of Louisiana.
    It was a petition in the District Court relating to land, the circumstances of which it is unnecessary to state, any further than they are referred to in the opinion of the court, as the case went off upon a point of jurisdiction. It was argued by Mr. S. S. Prentiss and Mr. Perin, for the appellants, and Mr. Clifford (AttorneyrGeneral), for the United States.
    That part of the argument of the Attorney-General which related to the point of jurisdiction was.as follows..
    On the part of the United States it is contended, that the Supreme Court has no jurisdiction under the second section of .the, act of 1824, or under any other act, unless in cases where the judgment or decree in the court below made final disposition of the suit.
    This point has been repeatedly ruled, on the twenty-fifth section of the Judiciary Act, by the unanimous judgment of the court, and is believed no longer to be an open question. Houston v. Moore, 2 Wheat. 433. Gibbons v. Ogden, 6 Wheat. 448. Weston et al. v. City Council- of Charleston, 2 Peters, 449. Winn’s Heirs v. Jackson et. al., 12 Wheat. 135.
    “ The word final must be understood as. applying to all judgments and decrees which determine the particular cause.” Weston et al. v. City Council of Charleston, before cited, on' pages 464, 465.

      The act of 1824 follows very closely the requirements of the Judiciary Act in this respect. The second section provides, — “ And in. all cases the party against whom the judgment or decree of the said District Court may be finally given shall be entitled to an appeal, within one year from the time of its rendition, to the Supreme Court of the United. States, the de- , cisión of which, court shall be final and conclusive between the parties; and should no appeal be taken, the judgment or decree of the said District Court shall, in like manner, be final and conclusive.”
    The appeal is allowed only to the party against whom the judgment or decree may be finally given; and, further, to place the point beyond' doubt, in case no appeal be taken, it is specially provided that the judgment or decree of. the District Court shall be final and conclusive.
    In this case-no final decree was made. Some points in the demurrer being.sustained, the petitioners appeal. The petition is not dismit -¡ed, but,- from aught that appears, in the record, is still open to a rehearing. It is clearly within the discretionary power of the . district judge to allow the appellants to amend and avoid the objections raised. At all events, the final ’decree has not been passed, and no appeal will lie.
    The record does not show that the-proceedings'.in the court below are closed; consequently no case is made within the .provisions of law authorizing an appeal. The petition and pleadings are still within the control of the courí-íjelow.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case is brought here by appeal from the District Court of the United States for the District of Louisiana.

It appears that a petition was filed by the appellants, claiming an inchoate title to certain lands, under Spanish grants, which they alleged the United States were bound to perfect; but that these lands had been sold by the;-United States to divers persons unknown to the petitioners. They therefore prayed that the validity of their claim might be inquired into, and that they be allowed to locate the same number of arpents upon the public domain, according to the provisions óf the act of Congress of May 26, 1824, § 11, which was extended to Louisiana by the act of June 17, 1844.

The proceedings upon this petition* as stated in the record, appear to have been irregular and confused, and it is unnecessary to state them at large. It is- sufficient to say, that the district attorney demurred to the petition, setting forth various causes of derrmrrer, that the petitioners afterwards amended their petition, and that the district attorney again demurred; and after various other proceedings, the record States that the following judgment was entered on the minutes: —

“ The demurrers to the original and to the amended petition of petitioners, submitted to the court yesterday, .having been considered by the court, it is now ordered, adjudged, and decreed, that the 4th ground of demurrer set forth in the demurrer to ■ the original petition be sustained, and that the 1st, 2d, 3d, 5th, 6th, 7th, and 8th grounds set forth in said demurrer be overruled, it appearing that said last-mentioned grounds of demurrer have been removed by petitioners’ amended petition.

“ It is further ordered, that the 1st and 2d grounds of demurrer, set forth in the demurrer of respondents to the amended petition of petitioners, be sustained, and that the 3d ground of demurrer, set forth in said demurrer to said amended petition, be overruled.”

The grounds of demurrer sustained by the District Court were, that the petition was multifarious, and that the names of the persons claiming or in possession of the land which the petitioners alleged belonged to them were not set forth.

The appeal was taken from the judgment above recited. But evidently that judgment is not a final judgment or decree. For the petition is not dismissed, nor is the title of the petitioners to the land claimed by them finally adjudicated, nor their right to locate the same number of arpens upon the public domain. Nothing is decided but a question of pleading and a question as to proper parties. The petition appears to be still pending in the District Court; and the objections upon which the court decided against the petitioners might be removed, if the appellants desired it, by an application to the court for leave to amend. But if the petitioners did not move for leave to amend, and preferred taking the opinion of this court upon the questions decided against them in the District Court, then; under the opinion given by that court upon the demurrer, it should have proceeded to pass a final decree dismissing the bill. An appeal from, that decree would have brought the case legally before this court, and authorized it to examine, the grounds upon which the decree had been made.

But as there is no final judgment or decree, we have no jurisdiction, and consequently the appeal must be dismissed.

Order.

This'cause came on to be heard on the transcript of the record from the District Court .of the United States for the District of Louisiana, and was argued by counsel; and it appearing to the court here that there has been no final judgment or decree of the said District Court in this, cause, it is thereupon now here ordered and decreed by this court, that this appeal be and the same is hereby dismissed for the want of jurisdiction.


author: Mr. Chief Justice TANEY Mr. Justice WOODBURY

text:
    The United States, Appellants, v. Thomas Curry and Rice Garland.
    The 9th section of the act of -26th May, 1824, relative to the action of the Attorney-General in cases of appeal, is only directory, and its non-observance does not vitiate an appeal, provided it be taken by the district attorney and sanctioned in this court by the Attorney-General.
    Ah attorney or solicitor cannot withdraw his name, after it has been entered upon the record, without the leave of the court, and the service of a citation upon him, in case of appeal, is as valid as if served on the party himself.
    The opinion of the court in the case of Villabolos n. The United States (ante, p. 81) again asserted; viz. that the appellant must prosecute his appeal to the next succeeding term of this court, and whenever the appeal is taken by entering it in the clerk’s office, the adverse party must be cited to appear at that time. •Therefore, where an appeal was filed in the clerk’s office in November, 1846, and there was no citation to the adverse party to appear on the 7th of December, 1846 (the commencement of the succeeding term of this court), the case was not removed upon that appeal.
    A party may take a second appeal where the firs.t has not been legally prosecuted. But m the present case, the order of the court cannot be construed as a grant of a second appeal.
    The appeal must therefore be dismissed, on motion.
    This was an appeal from the District Court of the United States for Louisiana, involving the title to a large body of land in that State. The proceedings of the District Court are sufficiently set forth in the opinion of the court and in the argument of Mr. Curry, to which the reader is referred.

      Mr. Curry moved to dismiss the appeal, as having been irregularly brought up.
    The motion was argued by Mr. Curry and Mr. Jones, in favor of it, and Mr. Clifford, Attorney-General, against it.

      Mr. Curry said that the proceedings in this case were had under the law of Congress, passed the 26th May, 1824, “ enabling claimants to land (within the State of Missouri, <fec.) to institute proceedings to try the validity of their claims,” &c.: which is revived by the act of the 17th June, 1844, by “ An act- to providé for the adjustment of land claims within the States of Louisiana, &c.” The first of these acts is in the 4th volume of the Statutes at Large, p. 52; the last one is to be found in the 5th volume of the’same work, p. 676.
    The appeal is from the United States District Court for Louisiana, sitting as a court of equity, under the provisions of the first-recited act.

      The second section of this act provides, “ that every petition or suit shall be conducted as in a court of equity, &c. and . in all cases the party against whom' the judgment or decree of said District Court may be finally given shall be entitled to an appeal, within one year, from- the time- of its rendition, to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the parties,” &c.
    The ninth section of said act has this provision: — “ That it shall be the duty of the district attorney of the United States for the district in which the suits authorized by this act shall be instituted, in every case where the decision is against the United States, and the claim exceeds one thousand acres, to make out and transmit to the Attorney-General of the United States a statement containing the facts of the case, and the points of law on which the sanie was decided; and if the Attorney-General shall be of opinion that the decision of the District Court was erroneous, it shall be his duty to direct an appeal to be made to the Supreme Court of the United States, and to appear and prosecute the said appeal in that court; and •it shall be the further duty of the district attorney to observe the instructions given to him by the Attorney-General in that respect.”
    The decree of the District Court of Louisiana sought to be appealed from was rendered and signed on the 26th day of June, 1846.
    On the 5th of November, 1846, the following petition was filed, upon which the'following proceedings of the court took' place, viz.: —
    To the Hon. T. H. McCaleb, judge of the District Court of the United States for the District of Louisiana.
    The petition of the United States respectfully shows, that it is .believed there is error in the judgment rendered against them in this honorable court Qn the twenty-sixth day of June last, 1846, in the matter of Curry and-Garland v. The United States.
    Wherefore they pray that your honor may be pleased to allow an appeal to be taken from said judgment to the Supreme Court of the United States.
    (Signed,)
    Thomas J. Durant, Att’y V. S.

      Judge's orders thereon.

    Let this petition be filed and an appeal granted as prayed for.
    (Signed,)
    Theo. H. McCaleb, IT. S. Judge.

      Let the said appeal be returnable on the second Monday of January, 1847.
    (Signed,)
    Theo. H. McCaleb, U. S. Judge.

    Let the return day of the appeal in this case be extended to the third Monday of February next', 1847.
    (Signed,)
    Theo. H. McCaleb, U. S. Judge.

    And on the 13th day of February, 1847, the following entry was made on the minutes, to wit: —

      Saturday, February 13th, 1847.
    Present, the Hon. T. H. McCaleb.
    Curry and Garland v. The United States.

      ') > J
    1.
    . Upon motion of Thomas J. Durant, United States district attorney, that the land cause No. 1, and entitled as above, appeal has been granted from the judgment rendered therein to the Supreme Court of the United States, at Washington, and that the said appeal has been made returnable on a subsequent day during the present session of the Supreme Court, and not on the first day of said term, as the practice generally is; to the end-that said case of appeal might have its chance of being tried during the present session; and as no object will be gained by issuing' citation to the. appellees, directing them to appear at any other time than on the first day of the said term of said court, it is therefore ordered, that the order upon the said petition of appeal in said cause be so amended as to make it returnable on or before the commencement of the next annual session of the Supreme Court.

      Mr. Curry further said, that no citation upon this order was issued until the 14th of August, 1847. But at that time the year within which an appeal could be taken had expired for more than a month. The citation was also irregularly served. The following extract from the record shows the date of the citation, and its irregular service.
    United States District Court for the District of Louisiana.
    To Thomas- Curry and Rice Garland, greeting:
    You are hereby cited and admonished to be and appear before the Supreme Court of the United States of America, to be holden at Washington city, on the first Monday of December next, pursuant to an order of appeal granted on the thirteenth day of February, 1847, by the district judge of the United States for the District of Louisiana, in a certain suit wherein you are plaintiff and the United States.are defendants, to show cause, if any there be, why the decree rendered on the second day of- May, 1846, against the said appellants and in your favor, should not be corrected, and why speedy justice should not be done to the parties in this behalf.
    Witness my hand and seal, at New Orleans, this fourteenth day of ' August, A. D. 1847.
    Theo. H. McCaleb, U. S. Judge

      Marshal’s return.

    Rec’d, August 27th, 1847, and on the 8th September, 18.47, served copies of the above citation on Wm. C. Hamner, in person, at New Orleans, said Wm. C. Hammer’s name appearing on the docket as attorney for the above-named plaintiffs.
    Wm. Shearer, D’y U. S. Marshal.

    Filed 15th November, 1847.

      Mr. Curry therefore moved to dismiss the appeal, on the three following grounds, viz.: —
    1. Because it was taken and entered in the clerk’s office on the 5th November, 1846, and no citation issued or was served before the next term of this court after the appeal was entered; nor did any issue until the year allowed to appeal in had elapsed. Consequently there was no appeal .within the year. See the case of Villabolos v. The United States, decided at the present term of this court.
    2. There was no service of the citation of appeal, even if it had issued in time, on the appellees, as is required by law.
    3. That no appeal has been directed to be made to the Supreme Coúrt of the United States in this case by the Attorney-General, so far as the record shows, in the manner prescribed by the -9th section of the act of 26th May, 1824

      Mr. Clifford (Attorney-General) contended,
    on the part of the United States, that the appeal was not taken in fact until the 13th February, 1847; that an appellant may withdraw an appeal and renew it; that the appeal was prayed in open court, when no citation was necessary; that the citation was not necessarily a part of the record, and therefore was no part of a writ, of error; that if served at any time before the return day, the service is good.
    For these and other views he referred to 4 La. Rep. 318; Code of Practice, art. 594; 2 Smith, Ch. Pr. 14, 37; 2 Cranch, 33; 6 Binney, 106 ; 6 Mass. 435; 5 Howard, 295 ; 4 Cranch, 180; 3 Peters, 459; 7 Peters, 147.

      Mr. Jones, in support of the motion, contended,
    that the 9th section of the act of 1824 had not been complied with; that the right of appeal was limited and not absolute, under the 2d and 9th sections of that act; that the public interest required that frivolous cases should not be brought up ; that the service upon an attorney Vas not sufficient; that it depended on the rules of the court to make it so, and here there were no rules * that a reference to the record would disprove that the 13th of February, 1847, was the time of appeal, and show that this order was merely a modification of an existing appeal.
   Mr. Chief Justice TANEY

delivered the opinion of.the court.

A motion has been made to dismiss this case for want of jurisdiction.

The appeal was taken from a decree of the District Court of the United States for the Louisiana District, confirming to the appellees certain lands which they claimed under a Spanish grant. The decree was made on the 2d of May, 1846. But a new trial was afterwards granted, in order that third persons, who also claimed title to the land, might .have an opportunity of intervening in the suit, according to the practice of the Louisiana State courts. Subsequently, however, the petition of the intervenors was withdrawn, and another decree was passed and signed on the 26th of Jiine, 1846, again confirming the title of the present appellees. It is not material to this inquiry whether the first or second decree is to be regarded as the final one in the District Court.

This proceeding by new trial (instead of rehearing, as in chancery) and intervention was irregular. And the court seems to have followed the Louisiana State practice, when the acts of Congress direct that the proceedings in such cases shall be conducted according to the rules of a court of equity. 5 Statutes at Large, 676 ; 2 Statutes at Large, 53.

On the 5th of November, 1846, the district attorney presented a petition to the district judge, praying an appeal, who thereupon passed an order, indorsed on the petition, directing it to be filed and the appeal granted. Further orders of the district judge are also indorsed on the petition, — one directing the appeal to be returnable to the second Monday of January, 1847; another extending the time to the third Monday in February; and another dated the 13th of February, 1847, in the following words : —

“ Upon motion of Thomas J. Durant, United States district attorney, that the land cause No. 1, and entitled as above, appeal has been granted from the judgment rendered therein to the Supreme Court of the United States, at Washington, and that the said appeal has been made returnable on a subsequent day during the present session of the Supreme Court, and not on the first day of said term, t ' the practice generally is; to the end that said case of appeal might have its chance of being-tried during the present session; and as no object will be gained by issuing citation. to the appellees, directing them to appear at any other time than on the first day of the said term of said court, it is therefore ordered, that the order upon the said petition of appeal in said cause be so amended as to make it returnable on or before the commencement of the next annual session of the Supreme Court.”

Afterwards, on the 14th of August, 1847, a citation was issued, requiring the appellees to appear in this court on the first Monday in December then next following. The citation states the decree from which the appeal was made to have passed on. May 2, 1846, and refers to the order above recited as an appeal granted on the day the order bears date. It was served, as appears by the return of the marshal, on the 8th of September following, on the attorney whose name appeared on the docket as the attorney for the petitioners, who. are the present appellees. But the affidavit of the attorney has been filed here, stating that he was not at that time their attorney, — that his fee had been paid, and he had been discharged from all duty as attorney or counsel for the parties, and had so informed the marshal at the time of the service.

In this state of the facts, several objections have been made to the validity of this appeal. Two of them may be disposed of in very few words.

It is said that the record does not show that this appeal was taken by the direction of the Attorney-General, according to the provisions of the 9th section of the act of May 26, 1824. We think there is no force in this objection. That section is merely directory to the officers of. the United States, and intended to guardTmore -effectually the public interests. And if the appeal is taken by the district attorney, and sanctioned in this court by the Attorney-General, it is sufficient, even though it should appear (which it does not in this instance) that the appeal was taken without his previous direction.

So, too, as to the service of the citation on the attorney. It is undoubtedly good, and according to the established practice in courts of chancery. No attorney or solicitor can withdraw his name, after he has once entered it on the record, without the leave x>f the court. And while his name continues there, the adverse party has a right to treat him as the authorized attorney or solicitor, and’ the service of notice upon him is as valid as if served on the party himself. And we presume that no •court would permit an attorney who had appeared at the trial, with the sanction of the party, express or implied, to withdraw his name after the case was finally decided. For if that could be done, it would be impossible to serve the citation where the party resided in a distant country, or his place of residence was unknown, and would in every case occasion unnecessary expense and difficulty, unless he lived at the place where the court was held. And, so far from permitting an attorney to embarrass and impede the administration of justice, by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke.

The remaining objection is a more serious one. Has this appeal been taken and prosecuted within the time limited by the acts of Congress ? The District Court appears to have acted, in relation to the appeal, as it did in its previous proceedings, under the erroneous impression that it must follow the practice of the Louisiana State courts ; without adverting to the acts of Congress which conferred on the court the special jurisdiction it was exercising, and which prescribe, the manner in which it shall be exercised. There was no necessity for the petition to the district judge to grant the appeal. It was a matter of right given by law after final decree, which the court could not refuse. Nor had it any power to prescribe the time or manner in which the record was to be transmitted, and the case brought before this court. That, too, is regulated by acts of Congress, which the court can neither change nor modify. All the orders, therefore, upon this subject were unauthorized and void. And the validity of the appeal depends altogether upon the laws of the United States, without reference to the laws of Louisiana or orders of the District Court.

The acts of Congress concerning appeals in cases of this description were fully considered by the court in the case of Villabolos v. United States, decided in the early part of the present term, and the previous decisions of this court referred to and examined. And the court in that case held that the appellant must prosecute his appeal to the next succeeding term of this ccurt, and the adverse party be cited to appear at. that time, whenever the appeal is taken by entering it in the clerk’s office. In the case before us, the appeal was filed in the clerk’s office, November 5, 1846. The next succeeding term of this court commenced on the 7th of December in the same year. Bitt there was no citation to the adverse party to appear at that time, and consequently the case was not removed to this court upon that appeal. The citation which issued on the 27th of August, 1847, would not bring up an appeal returnable to December term, 1846.

It is true, that, although this appeal was not prosecuted, yet the district attorney might have taken another appeal at any time, -within a year from the date of the decree, and brought it up by a citation returnable to the December term, 1847. The right of a party to take a second appeal where the first had not been legally prosecuted was decided in the case of Yeaton v. Lenox, 8 Peters, 123. In that case, the first appeal was dismissed by the court, for the want of a proper citation. And the appellant, before the expiration of the time limited by law for appealing, entered a second appeal in the Circuit Court, and cited the adverse party to appear at the term of this court next, following the second appeal; and the second appeal was held good. If, therefore, the order 'of February 13, 1847, could, as contended for in the. argument, he regarded as a second appeal, the case would be regularly before the court, upon the citation issued in the August following.- But, after very carefully considering that order, the court think that no just construction of its language will authorize us to regard it as a second appeal. It was evidently nothing more than a motion to extend the time for returning the appeal previously taken ; and the court directs that its former order be so amended as to make the citation returnable to the next term of this court. The citation which afterwards issued, in August, 1847, calls this order an appeal, and speaks of it as an appeal-granted on the day it-bears date. But' this description in the citation cannot change the meaning of the language used in the order. It appears, like the preceding ones, to have been made under the impression that the District Court had the power to regulate the time and manner of bringing up the appeal.

It has been said that this objection is a mere technicality, and may be regarded rather as a matter of form than of substance. But this court does not feel itself authorized to treat the directions of an act of Congress as it might treat a technical difficulty growing out of ancient rules of the common law. The power to hear and determine a case like this is conferred upon the court by acts of Congress, and the. same authority which gives the jurisdiction has pointed out the manner in which the case shall be brought before us; and we have no power to dispense with any of these provisions, nor to change or modify them. And if the mode prescribed for removing cases by writ of error or' appeal be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy by altering the existing laws ; not for the court. And as this appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it musx be dismissed for want of jurisdiction.

Mr. Justice WOODBURY

dissented:

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, and it appearing to the court that this appeal has not been prosecuted .in the manner directed and within the time limited by the acts of Congress, it is therefore now here ordered and' decreed by this court, that this- appeal be and the same.is hereby dismissed.