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United States v. Gomez (68 U.S. 690)

MOTION to dismiss an appeal from the decision of the District Court for the Southern District of California, as not having been taken in time, that is to say, within five years; as having been made without citation, and as not founded on a properly certified transcript. The case was thus:

Gomez had presented a petition to the board appointed by the act of Congress of March 3d, 1851, to settle private land claims in California, praying for confirmation of a tract called the Panoche Grande, and which, he alleged, had been granted to him in 1844 by Governor Micheltorena. The board rejected his claim, and he appealed to the District Court accordingly. The case came on to be heard in that court June 5th, 1857, and the record proceeds:

'Whereupon the court being fully advised in the premises, delivered its opinion, confirming the claim to the extent called for in the transcript and papers, three leagues; and a decree was ordered to be entered up in conformity to said opinion.' This entry is dated June 5th, 1857, the same day the cause was heard. On the 7th of January, 1858, a decree in extenso was filed, making the usual recitals of form, describing the land 'confirmed' as 'three legues, more or less, situate in the county of Monterey, State of Calif rnia; bounded on the north by lands of Julian Usura, on the south by the hills, on the east by the Valley of the Julares, and on the west by lands of Francisco Arias.' The decree ended thus:

'And it appearing to the court that on the 5th June, A. D. 1857, the lands in this case had been confirmed by the court to the said claimant and appellant, and it having been omitted to sign and enter a decree therefor at the date last aforesaid, it is ordered that the same be done now for then.'

On the 4th of February of this same year the court 'ordered that the appellant have leave to amend the decree filed in the case, by substituting another in its stead.' Gomez did accordingly, on the day following, to wit, the 5th of February, 1858, procure another decree to be entered in form and in extenso. It was much like the former decree, except that it described the tract by name, 'Panoche Grande,' giving the boundaries as before, describing it as containing four leagues. This decree ended thus:

'It appearing to this court that heretofore, to wit, on the 5th day of June, 1857, at a regular term of this court, the claim of the appellant in this case had been confirmed by this court, but that it had been omitted by this court to sign the decree of confirmation at the time the same was made: It is therefore further ordered by this court that the same be signed now as far then.'

Subsequently to this entry the United States obtained a rule to open the decree and reinstate the case, with leave to take testimony, assigning, as reason, that the decree had been improvidently entered; that new evidence, now discovered, would show the claim to be fraudulent; and that the decree itself had been fraudulently procured. Evidence was accordingly taken tending to show that the District Attorney of the United States himself one P. Ord-had been a party interested in the claim. The court (Ogier, J.), thereupon, on the 21st March, 1861, made this order:

'Whereas it has come to the knowledge of this court that a decree heretofore rendered by this court in this case, was fraudulently obtained by misrepresentations of the then district attorney, P. Ord, and other counsel in the case; and it appearing to the satisfaction of the court, from testimony on record in the case, that the then district attorney, counsel for the United States, was, at the time of making said decree, interested in the land claimed in said cause, adversely to the United States, and representing to the court that there was no objection to the confirmation of the claim aforesaid on the part of the United States, a decree was entered without an examination by the court into the merits of said claim, thus deceiving the court and obtaining a decree in his own favor under the false pretence of representing the interest of United States. It is therefore ordered that all proceedings heretofore had in said cause be set aside, and the cause by put on the calendar and set for trial de novo according to law.'

Another judge having afterwards been appointed to the bench of the District Court, a motion was now made to vacate this order of March 21st, just before recited, and on the 4th of August, 1862 June Term of that year-the new judge remarking that he was not surprised that his predecessor, on learning the facts, 'should have been indignant and set the whole aside,' yet conceiving that after the lapse of a term the court could not alter, change or modify a decree unless to correct some clerical error, 'with great reluctance' vacated the last order which that said former judge had made, and by which the proceedings had been set aside and the case placed on the calendar for trial de novo.

At this same term, on the 25th August, 1862, on motion in open court-no citation, however, having been issued-an appeal was allowed the United States to the Supreme Court of the United States 'from the decision and decree of this court confirming the claim of the claimant herein;' and on the 6th October ollowing, the district attorney, by writing field, reciting that the claimant was 'desirous of moving the court to set aside' the order for an appeal, agreed that all proceedings should be stayed till the next term, 'so as to give the claimant an opportunity to make such motion.' The counsel of the claimant, on the 24th of November following, gave notice that on the opening of the court, on the 1st December, 1862, he would make a motion to vacate the order granting the appeal, and the motion was accordingly heard, and the order for appeal subsequently vacated.

title: United States v. Gomez (68 U.S. 690)


text: Talk:United States v. Gomez (68 U.S. 690)

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
United States v. Gomez (68 U.S. 690)/Opinion of the Court

The transcript of the record in the case was certified (under the act of Congress of 6th August, 1861, § 2), by Mr. B. C. Whiting, 'United States District Attorney for the Southern District of California,' and certified 'that the foregoing one hundred and seven pages are a full, true, and correct copy of all the proceedings, entries, and files in the District Court of the United States for the Southern District of California, except the transcript sent up from the late Board of Land Commissioners in the case of United States v. Vincente Gomez, No. 393, on the docket of the said court, for the claim called 'Panoche Grande."

The motion to dismiss the appeal as already indicated was on three grounds:

1. Because no appeal had been taken until more than five years after the decree had been entered in the case, and not taken within the time therefor, which this court had decided to be the limit.

2. Because there had been no citation to the opposite party.

3. Because what purported to be the transcript was not made and certified according to law, and was defective both for omissions and additions, and contained matters forming no portion of the record.

Messrs. Brady, Gillet, and Eames, in support of the motion:

1. By the Judiciary Act of 1789, it is enacted, that 'writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of,' and by the act of 1803, that 'appeals shall be subject to the same rules, regulations, and restrictions as are prescribed by law in cases of writs of error.' In United States v. Pacheco, it was held, that as the act of Congress of the 3d March, 1851, does not specify the time within which an appeal must be made to the Supreme Court from the District Courts of California, the subject must be regulated by the general law respecting writs of error and appeal. An appeal, therefore, must be taken within five years from the final decree. The first inquiry, therefore, is, from when does the time begin to run? From the time the decision in pronounced and entered in the minutes, or not from until the day when the decree is formally drawn up, signed, and entered? In Fleet v. Young, the Court of Errors in New York held that the time for suing out the writ of error commences from the time of the entry of the rule for judgment, and not from the time of filing the record. The statute of New York is similar to the law of Congress. The chancellor said, in the case cited: 'The language of the statute, as contained in the recent revision, is that the writ of error shall be brought within two years after the rendering of the judgment or final determination of the court, and not after,' &c. Both the law of Congress and the statute of New York differ from the English statutes as they were when this decision was made. By the English statute, a writ of error could be brought within twenty years after the judgment record signed and filed, and judgment entered; by rule of the House of Lords, an appeal must be brought within five years after the enrolment of the decree. In Fleet v. Young, the chancellor discusses the difference between the New York statute and the English statute, and also says: 'In point of principle, it is not very material whether one construction or the other is adopted, as the plaintiff in error may himself obtain permission to make up the record, if the adverse arty neglects to do it within a reasonable time after the actual rendition of the judgment, and it is not necessary to wait for the filing of the record before a writ of error can be sued out. It is sufficient if the judgment be signed and filed at any time before the actual return of the writ of error, although after the return day is past.'

The case of Lee v. Tillotson, before the Supreme Court of New York, is also in point. That was a motion by the defendant for leave to draw up a statement of facts from the special report made by referees, and to have such statement settled and inserted in the judgment record, to the end that he, the defendant, might bring a writ of error. It was objected that more than two years had elapsed since the decision of the motion to set aside the report, but not since judgment was perfected by filing the record, &c. The court say: 'Although it does not appear upon the papers that a rule for judgment was entered at the next term after the report was made, there can be no doubt that it was done; and, besides, if the rule was never entered, it would be almost a matter of course to allow it to be done nunc pro tunc. But we think the question of limitation does not turn on the time of entering the rule for judgment, but on the time when the final determination was made on the motion to set aside the report. The rule for judgment was undoubtedly entered in May Term, 1837, and, if we date from that, the time for bringing a writ of error had expired before the motion for a rehearing was made, which was in May, 1840. The question, then, is whether the limitation dates from the final determination of the court, which was in July, 1840, or from the subsequent filing of the judgment record in January, 1841. The statute provides that 'all writs of error upon any judgment or final determination rendered in any cause, shall be brought within two years after the rendering of such judgment on final determination, and not after.' The judgment on final determination in this cause was rendered in July Term, 1840, when the motion which had been made to set aside the report of the referees was denied. The record which was afterwards filed was not the judgment, but only a written memorial of the judgment which had been previously rendered. The Court of Errors arrived at the same conclusion, on this question, in Fleet v. Young. It follows, that the time for bringing a writ of error has already expired, and we ought not to put the plaintiff to the expense and ourselves to the inconvenience of settling a case when we see it can do no good.'

In the English case of Smythe v. Clay, the decree was actually enrolled within five years from the time of bringing the appeal, but more than twenty years after the decree was actually rendered. It seems to have been held that the enrolment of any decree pronounced by the Court of Chancery is deemed as being, by legal relation, the act of the same day on which the decree was pronounced.

Then we have the nunc pro tunc clause added, in terms, to the decree, signed, filed, and entered the 5th February, 1858. In Lee v. Tillotson, supra, it is said such an order would have been a matter of course. The effect of the clause specially inserted is, of course, to make more specially the judgment relate back to the time when the decree should have been entered.

This appeal, therefore, not having been in time, the decree of the District Court must stand. The order of 21st March, 1861-an order made near four years after the date when that which we assert was the decree was rendered-is a nullity; for, as this court has declared, 'no principle is better settled, or of more universal applicat on, than that no court can reverse its own final decrees or judgments for errors of fact or of law, after the term in which they were rendered, unless for clerical mistakes, or reinstate a cause dismissed by mistake.'

2. If the appeal had been taken in time it is a nullity, because no citation was taken or served. In Hogan v. Ross, this court said, that where no citation had been issued or served, the cause must be dismissed. In Villabolos v. United States, the court held that an entry of appeal in the clerk's office did not remove the cause; and that where an appeal was not taken in open court at the term at which the decree was rendered, in the absence of a citation signed by the judge allowing it, the appeal was a nullity. At the same term, in United States v. Curry, the rule was iterated.

3. The district attorney has not certified the whole record. He certifies that the one hundred and twenty-seven pages are 'a full, true, and correct copy of all the proceedings, entries, and files in the District Court for the Southern District of California, except the transcript sent up from the late Board of Land Commissioners.' This transcript he does not vouch for as a copy of that on the files. Hence the exemplification cannot be relied on. How much may have been omitted, how much added, cannot be ascertained. It must accordingly be rejected in toto.

Messrs. Bates, A. G., and Black, contra.

[Argument of Counsel from page 698 intentionally omitted]

Mr. Justice CLIFFORD delivered the opinion of the court.

This was a petition for the confirmation of a land claim under the act of the third of March, 1851, and the case comes before the court upon the motion of the appellee to dismiss the appeal. Appellee in his petition to the commissioners appointed under that act, asked for the confirmation of a claim to a tract of land, called Panoche Grande, of the extent of four square leagues, and alleged as the foundation of the claim that the tract was granted to him in the year 1844, by Governor Manuel Micheltorena. Eighth section of the act requires the claimant to file the documentary evidence of his title with his petition, but the claimant in this case did not comply with that requirement, because, as he alleged, his title-papers were lost, and he gives in detail the circumstances of their loss about the time the military and naval forces of the United States took possession of Monterey. Unable to exhibit his title-papers, he relied upon parol proof to show their existence, loss, and contents. Commissioners rejected the claim, and the claimant appealed to the District Court for the Southern District of California. Cause came on to be heard on the fifth day of June, 1857, and the record states that after argument of counsel the same was submitted to the court for final adjudication. Whereupon, as the record further states, the court being fully advised in the premises, delivered its opinion, confirming the claim to the appellant to the extent called for in the transcript, to wit, three leagues or sitios de ganado mayor, and a decree was ordered to be entered up in conformity to said opinion.

Dismissal of the appeal is claimed upon three principal grounds. First, because more than five years elapsed after the decree was entered before the appeal was claimed and allowed. Secondly, because there is not any citation to the opposite party. Thirdly, because the transcript of the record is incomplete and not duly certified.

I. Appeal to this court was allowed on the twenty-fifth day of August, 1862. Opinion of the court confirming the claim was delivered on the fifth day of June, 1857, more than five years before the appeal was taken.

Claimant assumes that the entry made in the minutes on that day is the final decree, and consequently that the appeal was too late. But the proposition cannot be sustained, as is evident from a moment's inspection of the record Entry is that a decree was ordered to be entered up in conformity to such opinion. No decree of any kind, however, was drawn up, entered, or filed on that day. On the contrary, the record shows that on the seventh day of January, 1858, a decree was filed in the case, and the decree itself, after referring to the fact that the claim had been confirmed on the fifth day of June, 1857, states, that 'having been omitted to sign and enter a decree therefor at the date last aforesaid, it is ordered that the same be done now for then.' Decree, as thus filed, was for three square leagues of land, more or less, situated in the county of Monterey, State of California, and bounded on the north by lands of Julian Ursura, on the south by the hills, on the east by the valley of Tulares, and on the west by lands of Francisco Arias. Donee was not satisfied with the decree, and on the fourth day of February, 1858, obtained leave to amend the same by substituting another in its stead. Pursuant to that leave, on the following day he filed a new decree, enlarging the description of the tract to four square leagues, and the same was entered and signed by the district judge. Argument can add nothing to the force of this statement, as drawn from the record. Plainly there was no decree of any kind in the case until the seventh of January, 1858, and as that was ordered to be amended by substituting another in its stead, the final decree in the case was that of the fifth of February following. Five years, therefore, had not elapsed after the decree was entered before the appeal was taken, and consequently the first ground assumed in the motion cannot be sustained.

II. Want of citation is the second ground of the motion, and on this point also it becomes necessary to examine the record. Final decree was rendered on the fifth day of February, 1858, but on the twenty-first day of March, 1861, the court entered a decree in the cause that all the proceedings heretofore had in said cause be set aside, and that the cause be put on the calendar and set for trial, de novo, according to law. Transcript shows that the order vacating the decree was passed upon the ground that the decree had been fraudulently obtained, it appearing to the satisfaction of the court from the testimony in the case that the district attorney was, at the time of making the decree, interested in the land claimed in the cause adversely to the United States.

Statement of the court also shows that the district attorney represented to the court that there was no objection to the confirmation of the claim, and that a decree was consequently entered without an examination of the merits of the claim, and the charge is that the district attorney deceived the court and obtained a decree in his own favor under the false pretence of representing the interests of the United States. Testimony was taken upon the subject, and the charge as stated was fully proved. Whereupon the court vacated the decree, and ordered the cause to stand for trial. Proceedings in the cause in the meantime took place, in this court, as more fully appears in the case United States v. Gomez, 23 How., 326, to which particular reference is made for the character of those proceedings. Delay ensued, and in the meantime a new appointment of district judge was made. Application was then made by the claimant to set aside the order vacating the original decree, and at the June Term, 1862, held on the fourth of August, of the same year, the court ordered that the previous order, made and entered on the twenty-first day of March, 1861, setting aside all proceedings had in the cause, and placing the same on the calendar for trial, de novo, be and the same is hereby vacated and set aside. United States, on the twenty-fifth day of August, in the same year, took the appeal which is under consideration. Appeal was taken in open court, and at the same term in which the order was passed restoring the original decree, or rather vacating the order of the twenty-first of March, 1861, setting t aside and placing the cause on the calendar for trial. Appeal, it is true, purports to be from the decision and decree of the court confirming the claim, but it was taken from that decree not only after it had been vacated, but after the decree directing it to be vacated had itself been stricken out, and the original decree had been restored. Admitting that the order restoring the original decree was one of any validity, then indeed no citation was necessary, because the appeal was taken in open court, and might well be regarded as taken at the same term in which the decree was entered. But it is unnecessary to place the decision entirely upon that ground. Granting that the appeal is from the original decree, and that the question is wholly unaffected by the subsequent orders, still it is quite clear that no citation was necessary in this case. Claimant at once signified his intention to move the court to set aside the order granting the appeal, and thereupon it was stipulated and agreed between the parties that all further proceedings should be stayed until the next term of the court. Notice in writing was accordingly given by the claimant that he would submit such a motion at the next term at the opening of the court. He did submit it, and the parties were heard, and the court gave an opinion sustaining the motion. Petition for an injunction was afterwards filed to prevent the appeal, and the parties were heard upon that subject, but the injunction was denied. Object of the citation is notice, and under the circumstances of this case that purpose seems to have been fully answered, and the objection is accordingly overruled.

III. Third ground of the motion is that the transcript is incomplete, and that the same is not duly certified. Second section of the act of the sixth of August, 1861, provides that the District Attorney of the United States of any district in California, may transcribe and certify to the Supreme Court of the United States the records of the District Court of his proper district, in all land cases wherein the United States is a party, upon which appeals have been or may be taken. 12 Stat. at Large, p. 320.

Certificate in this case is certainly made by an officer authorized by law to make it, and we are not able to perceive that it is defective. Remedy of appellee, if the transcript is incomplete, is a plain one and one of daily use. He should suggest diminution, and ask for a certiorari, which is readily granted when applied for in season.

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 the merits, we shall desire to hear the counsel upon 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, but they will arise when the merits of the case are examined, and will deserve very careful consideration.

MOTION REFUSED.


text: Talk:United States v. Gomez (68 U.S. 690)/Opinion of the Court


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Houghton v. Jones

THIS was a writ of error to the Northern District of California; the case being thus:

By the act of Congress of March 3, 1851, 'to ascertain and settle the private land claims in the State of California,' it is provided, 'that each and every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the commissioners,' &c., who are directed to examine into and 'decide upon the validity of the said claim.' And it is further declared that 'all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of the act, shall be deemed, held and considered as part of the public domain of the United States.'

With this act in orce, Mrs. Jones brought ejectment, in 1860, against Houghton and another, for land in Contra Costa County, in the State of California. She deraigned title from the Mexican government, through a grant issued in August, 1841, by Juan B. Alvarado, then Governor of the Department of California, and by sundry mesne conveyances from the grantees. It did not appear on the trial below that the grant had ever been laid before the Board of Commissioners, as required by the act above quoted, or in any way passed on by it. But no objection was made on the trial to the grant from this want of presentation to the board, or consideration by it.

One of the conveyances through which the plaintiff, Mrs. Jones, claimed was read in evidence, on proof of its execution, certified by a notary public. It is necessary, in that connection, to mention that a statute of California, 'concerning conveyances,' approved April 16th, 1850, contains the following enactments:

'SECTION 4. The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following officers: 1. If acknowledged or proved within this State, by some judge or clerk of a court having a seal, or some notary public or justice of the peace of the proper county. . . ..

'SECTION 29. Every conveyance, or other instrument conveying or affecting real estate, which shall be acknowledged, or proved and certified, as herein prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof.' The subscribing witness to the deed thus read was in court, and had been examined by the plaintiff about certain matters, but not about the execution of the deed. The defendant proposed to cross-examine him upon such execution, which the court would not allow him to do; deciding that if he wished to examine the witness at all upon a point not raised in the examination-in-chief, he must call him anew, and so make him his own witness.

The plaintiff having had judgment, and the defendant having sued out a writ of error, three questions were now here made; the first question having been raised on the argument in this court for the first time in the case.

1. Whether this want of presentation of the grant at any time to the Board of Commissioners was fatal to it?

2. Whether the deed was properly acknowledged by the laws of California.

3. Whether the court rightly refused to let the defendant cross-examine the witness in the circumstances stated.

Mr. Carlisle, for plaintiff in error:

I. The language of the statute of March 3, 1851, being express, it is indispensable that the grant should have been presented within two years after the date of the act. More than two years had passed before this suit brought. No averment of any presentation is made. No presumptions can be made to supply that which is a prerequisite of the case, an indispensable link in the title. The land is, of course, part of the public domain.

II. The statute does not dispense with calling the subscribing witness. The point has not yet been decided. Its language is perhaps not entirely plain.

III. The rule is not universally adopted that a right to cross-examine is limited to matters comprised in the examination-in-chief. In some States it prevails; in some it does not. The rule has not been so settled for California.

Mr. Hepburn, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Houghton v. Jones


text: Talk:Houghton v. Jones

title: Talk:Houghton v. Jones


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Houghton v. Jones/Opinion of the Court

This is an action of ejectment to recover the possession of certain real property situat d in the County of Contra Costa, in the State of California. The plaintiff below, the defendant in error in this court, deraigned her title from the Mexican government, through a grant issued in August, 1841, by Juan B. Alvarado, then Governor of the Department of California, and sundry mesne conveyances from the grantees. It does not appear from the record that the grant was ever confirmed by the Board of Land Commissioners appointed under the act of March 3d, 1851, for the investigation of titles to land in California derived from the Spanish and Mexican governments, or was ever presented to the board for its consideration; and it is the absence of any averment in these particulars which constitutes the first ground urged by the counsel of the plaintiffs in error for a reversal of the judgment. His position is, that under the act of March 3d, 1851, if the grant were not presented within the period there designated, which period had expired when this action was commenced, the land was to be deemed a part of the public domain, and that no presumption is to be indulged in respect to such presentation in the absence of any averment on the subject. It is a sufficient answer to this position, that it does not appear from the record to have been urged in the court below. It may be that the objection was not taken from the knowledge of the parties that the grant had been confirmed, and that proof of the fact could be readily produced. Objections of this kind cannot be heard for the first time in the appellate court. To entitle objections to consideration here, they must be presented to the court below in the first instance, at least if they are of a kind which might have been there obviated.

Of the intermediate conveyances from the grantees, through which the plaintiff below traced her title, one was produced and read in evidence, upon proof of its execution by one of the grantors, furnished by the certificate of a notary public. Objection was taken to the sufficiency of this proof, counsel contending that the execution should have been proved by calling the subscribing witness. The objection is answered by the statute of Claifornia, which expressly provides for the admission in evidence of conveyances of real property when verified by certificates of acknowledgment or proof of the execution by the grantors before certain officers.

It appears that the subscribing witness to the deed introduced was present in court during the trial, and was examined with reference to certain matters, but not touching the execution of the deed. The defendant thereupon claimed the right to cross-examine him with reference to such execution. The court held that the defendant must, for that purpose, call the witness, and could not properly make the inquiry upon the cross-examination. In this particular the ruling of the court below was correct. The rule has been long settled, that the cross-examination of a witness must be limited to the matters stated in his direct examination. If the adverse party desires to examine him as to other matters, he must do so by calling the witness to the stand in the subsequent progress of the cause.

JUDGMENT AFFIRMED.

title: Houghton v. Jones/Opinion of the Court


text: Talk:Houghton v. Jones/Opinion of the Court


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United States v. Morillo

APPEAL by the United States from the decree of the District Court for the Southern District of Claifornia, confirming a claim to land under the act of 3d March, 1851, entitled 'An act to ascertain and settle the private land claims in the State of California.' The act having, by a previous section, enacted that 'each and every person' claiming lands in California under title derived from the Spanish or Mexican government, should present them with evidence to a Board of Commissioners appointed by the act, who should examine the same 'upon such evidence, and upon the evidence produ ed by the United States,' and should decide on it, in its 13th and 15th sections provides as follows:

'SECTION 13. All lands, the claims to which have been finally rejected by the commissioners, &c., or which shall be finally decided to be invalid by the District or Supreme Court; and all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held and considered as part of the public domain of the United States. Provided, &c.

'SECTION 15. The final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.'

It was part of the case in this court, made so by the assertion of the United States, that the land in controversy had been confirmed to a person other than the claimant appellee, to wit, had been confirmed to one Ramon Yorba. But this fact did not appear in the record; nor was there evidence of any kind as to the date of this alleged decree; that is to say, whether it was prior to subsequent to the one from which the present appeal was taken. In this state of facts, the question upon this assertion by the Attorney-General of the United States, or his deputy, that the government had no further interest in the case, was, what form of order or decree should be made in this court; whether a decree of reversal, with direction to the court below to dismiss as wanting jurisdiction, or a decree here of dismissal simply?

Messrs. Bates, A. G., and Wills, for the United States: The act of March 3, 1851, gives jurisdiction to the District Courts of California and to this court on appeal, only in controversies between the government and individuals. This is to be inferred from the sections of the act as quoted. The purpose of the act was to provide the means of separating the national domain from the possessions of private individuals. If the controversy is between private individuals only, neither this court nor the court below has jurisdiction. Now the admission by the government that it has no interest in the land, is necessarily sufficient to satisfy the court of that fact; for it is an admission against its own interest. This court cannot entertain jurisdiction in the face of an acknowledgment by the United States that the contest is wholly between private claimants. But if this court has no jurisdiction, neither had the court below; and, whatever is sufficient to induce this court to decline jurisdiction, must of course be sufficient to induce it to reverse. If it declines jurisdiction, it does so only because satisfied that the claim is between private parties; and, when satisfied of that, it is satisfied also that the court below had no jurisdiction. Satisfied of that second fact it necessarily reverses. It matters not how it may be satisfied; whether by the record, or by admission of the party made here. If satisfied in any way, it is enough. The court cannot decline cognizance at all therefore for itself, on the ground alleged, and not go so far as to reverse the decree below with directions to dismiss.

The claimant, Morillo, was not represented here, either by counsel or by brief.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Morillo


text: Talk:United States v. Morillo

title: Talk:United States v. Morillo


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United States v. Morillo/Opinion of the Court

On the part of the appellant the point principally relied on is, that this court has no jurisdiction of the case, and the ground on which this point is based is the fact that the District Court has already confirmed the claim of another party, which covers the land now claimed by the appellees in this case. It is, therefore, say the counsel, a mere contest between individuals as to who is the real owner of the land, in which the government has no interest, and its decision is not necessary to separate the lands of the United States from those held by private parties.

We concur entirely with counsel, both in the reasoning and in the conclusion above stated; and as to the United States, who by her counsel asserts it, we assume that the fact on which the reasoning rests is correctly stated, to wit, that the land has been confirmed to another person.

The act of March 3, 1851, under which these proceedings were had, contemplated primarily nothing more than the separation of the lands which were owned by individuals from the public domain. This is clearly expressed in the 13th section of that act. The 15th section declares that the final decrees rendered in these proceedings, and the patents issued under them, shall be conclusive between the United States and said claimants only, and shall not affect the interest of third parties.

We therefore agree with counsel for the appellant that when the government no longer claims that the land is public land, the right of the United States to contest the case further ceases, and this court will not entertain jurisdiction to determine to which of two private claimants it may belong. It results from these considerations that the appeal in this case should be dismissed.

It is urged against this action of the court, that the same fact which shows that this court has no jurisdiction of the appeal, shows that the District Court was also without jurisdiction, and that its decree should be reversed, with instructions to dismiss the case.

The reply to this is, that it nowhere appears in the record of this case that the land claimed by appellees has been confirmed to any other person. The appellees are not represented here by counsel, to affirm or deny that fact stated by the counsel of the government. When the appellant appears by counsel, and makes the point that this court has no jurisdiction of the case, and supports that argument by the statement of a fact which sustains the point, we are certainly at liberty to assume that fact to be true as against the appellant, and dismiss his appeal. But when he asks us to go a step further, and adjudicate on the rights of the appellee, by reversing a decree in his favor, we must have some other evidence of that fact than the statement of the appellant's counsel.

But conceding it to be true for all purposes that the land in question has been confirmed by a decree of the District Court to another party, there is nothing to show whether that decree is prior or subsequent in date to the one now before us; or which claim was first presented to the Board of Commissioners for its action. We might, therefore, be doing the present claimant great injustice in reversing his decree and leaving another claim for the same land to stand affirmed in favor of some other person, while we can by no possibility injure the United States by dismissing an appeal in a case where it is evident that the government has no interest, and which can only be protracting the litigation for the benefit of one individual in his contest with another.

APPEAL DISMISSED.


text: Talk:United States v. Morillo/Opinion of the Court


text:
United States v. Estudillo

AN act of Congress of June 14th, 1860, authorizes the District Courts of California, on the application of any party interested, to make an order requiring the survey of any private land claims to be returned into court. The order is to be granted on the application of 'any party' whom the court 'shall deem to have such an interest in the survey and location. . . as to make it just and proper that he should be allowed to take testimony, and to intervene for his interest therein.' If the objection to the survey and location is made on the part of the United States, the order to return the survey into court is to be on the motion of the district attorney, founded on sufficient affidavits. 'And if the application for such order is made by other parties claiming to be interested in, or that their rights are affected by such survey and location, the court, or the judge, in vacation, shall proc ed summarily, on affidavits or otherwise, to inquire into the fact of such interest, and shall, in its discretion, determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order.' But the act provides also, 'that all the parties claiming interest, &c., derived from the United States, shall not be permitted to intervene separately; but the rights and interests of said parties shall be represented by the District Attorney of the United States, intervening in the name of the United States; aided by counsel acting for said parties jointly, if they think proper to employ such counsel.' The act also provides that before proceeding to determine the validity of any objection to the location made by the surveyor-general, notice by newspaper publication shall be given to all parties in interest, that objection has been made, and admonishing them to intervene for the protection of their interest.

The present case-another case (United States v. Nunez), being just like it, and depending upon it-was one of these surveys and locations which had been certified into the District Court for the Northern District of California. The record-a confused sort of document-showed that on the 3d of October, 1860, 'the United States Attorney, E. W. Sloan, and J. B. Williams appeared for the United States,' other counsel for the claiment, Estudillo, and R. Simson for a certain Castro, 'and on motion, it was ordered that he be allowed five days to make showing of his right to intervene herein, and no other party appearing, whereupon it is ordered that the default of all parties not appearing as aforesaid be and the same is hereby entered.' Subsequently, to wit, October 31st, 1860, 'come the United States by their attorney, and except to the official survey.' Subsequently to this 'the petition of Thomas W. Mulford, by his attorneys, E. W. Sloan and J. B. Williams,' set forth that he had an interest in the land claimed, and prayed the court to open the default entered on the preceding 3d, which motion the court, on the 20th of February, 1861, 'denied.' The case being here by appeal, as the United States, appellant, and J. J. Estudillo, appellee, Mr. Bates, A. G., in behalf of the United States, and Mr. Laitham for J. B. Estudillo, appellee, signed an agreement at the last vacation that the appeal should be dismissed; and the case was dismissed by the clerk accordingly; this agreement and dismissal purporting to be made under the 29th rule of this court, which provides that when the appellant and appellee in any appeal may, in vacation, by their respective attorneys, who are entered as such upon the record, sign and file with the clerk an agreement in writing, directing the case to be dismissed, it shall be the duty of the clerk to enter the case dismissed.

Mr. J. B. Williams, of California, he being the same Mr. 'J. B. Williams' already mentioned as appearing in the District Court there, now came into court (Mr. Carlisle being of counsel), and presenting himself as attorney of 'Thomas W. Mulford and others,' moved the court 'to vacate the stipulation, made under the 29th rule of this court, dismissing the appeal of the United States herein (which stipulation,' the motion ran, 'was made without their consent, or the consent of their attorney, or the consent of the District Attorney of the United States for the Northern District of California, and was made to their great prejudice and injury as settlers upon the public land of the United States); and that no mandate may issue upon said stipulation, but that the cause may stand to be heard in its order or otherwise as this court may direct; and that the attorney for Mulford and others be allowed to enter his appearance in this court, and be heard in their behalf, in the manner provided by the third section of said act of June 14, 18 0.'

Mr. J. B. Williams and Mr. Carlisle, in support of the motion: The act of June 14th, 1860, subjects the work of the surveyor-general to the revision of the District Courts, and enables all contestants to file objections, and have the survey examined and corrected if found to be erroneous. By obliging the surveyor-general to give notice, by publication, whenever he has made a survey of any private land claim, and by requiring all parties in interest to appear and intervene, a survey when finally approved is not only conclusive between the United States and the claimant, but is conclusive as to third parties, and the patentee can rely upon his legal title against all the world.

It is clear, from the provisions of the act, that Congress did not intend to allow each settler the privilege to intervene in his own name, with a separate right of appeal; its intention was to give them those rights jointly, and the use of the name of the United States. And if they can be heard jointly by their own counsel in the court below, why not in this court on appeal? Where does the Attorney-General of the United States find his authority for dismissing an appeal taken by the district attorney in behalf of the settlers? The 29th rule of this court applies only to the appellant and appellee by their attorneys. The attorney-general is not the attorney of those claiming under the laws of the United States. He is the attorney of the United States-not of the settlers. The appeal was taken in the name of the United States, but it was taken in behalf of Mulford and others, appearing jointly, and represented by their counsel. The attorney-general might well refuse to appear for the settlers, but he can have no right to dismiss their appeal when they stand ready to prosecute it by their counsel.

Mulford and other settlers on the lands under the laws of the United States, claim that if the confirmed tract be properly surveyed and located, they will be gainers. The District Court decided against them. They ask to be heard here by their counsel. If the decision of the District Court had been in their favor, and the claimant had appealed, they would have been compelled to defend themselves as appellees. The attorney-general would not have appeared in their behalf, for his action in dismissing the appeal shows that he would have considered a decision against the survey as unjust. They do not ask the attorney-general now to appear in their behalf, but to let them appear and be heard by their own counsel, leaving him to express the views of the United States, as proprietors of vacant public land, if he thinks proper.

The right of the attorney-general to dismiss appeals in general, where the United States is the appellant, is not questioned. Where the suit is strictly one between the United States and the claimant, in which neither the alienees of the claimant, nor those claiming under the United States, nor adjoining proprietors, can intervene, the right and duty of the attorney-general to desist from the prosecution of an appeal which only works ruin to the claimant under a genuine and valid title, is clear. But the location and survey of a confirmed claim almost always involves the interests of parties with whom the government has no concern. Here they are made to intervene. Does any one doubt if this case stays dismissed, and Mulford were hereafter to bring ejectment, that the record of this case would be used against him?

The right of special counsel-counsel acting for the individual claimants, though appearing to act for the United States-has never been questioned below; where the case is managed almost wholly by them, and where the question whether appeal shall or shall not be taken is left to their view of what their interests may suggest. There should be no different rule here, after the parties are brought, at an immense expense, a distance of six thousand miles.

Messrs. Bates, A. G., Black, and Johnson, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: United States v. Estudillo


text: Talk:United States v. Estudillo

title: Talk:United States v. Estudillo


text:
United States v. Estudillo/Opinion of the Court

The appeal in this case was dismissed during the last vacation, by stipulation of the parties, under the twenty-ninth rule. A motion is now made on behalf of one Thomas W. Mulford and others, that the stipulation be vacated, the mandate of the court be withheld, and their attorney be allowed to enter his appearance and be heard on their behalf.

The case was brought before the court on appeal from the decree of the District Court of the Northern District of California, approving a survey of a confirmed private land claim, under the act of June 14th, 1860. After the survey was returned into the District Court, a monition was issued to the marshal requiring him to notify all parties having, or claiming to have, any interest in the survey and location of the claim, to appear on a day designated and intervene for the protection of their interests. The only parties who appeared in pursuance of the notice given by the marshal were the United States, the claimant, and one Castro; and the court ordered the default of all other parties to be entered. Subsequently, Mulford, who now appears in the motion before us, applied to the court to open the default and to allow him to intervene, alleging an interest in a portion of the land embraced by the survey under a patent from the State of California; but his application was denied. The action of the court in this respect is not subject to revision, the opening of the default being a matter resting in its discretion.

The motion is on behalf of Mulford and others, but who are included by the term 'others' we are not informed by the record. Their names are not given, nor is their interest stated, except in the very general and loose terms with which it is designated in the argument of counsel as that of settlers on the land under the laws of the United States.

The act of 1860 is liberal in the permission it gives for interposing objections to the surveys of confirmed claims made by the Surveyor-General of California; but at the same time it limits with special care the permission to those who are in fact interested in making a contest. If authorizes the return of surveys for examination and adjudication only upon the application of parties who, in the judgment of the court or district judge, have such interest as to make it proper for them to intervene for its protection. It provides that when objections are interposed by the United States, the application shall be made by the district attorney, and be founded on 'sufficient affidavits;' and that when application is made by 'other parties claiming to be interested in, or that their rights are affected by,' the survey and location, there shall be a preliminary examination into the fact of such alleged interest. 'The court, or the judge in vacation,' says the statute, 'shall proceed summarily on affidavits or otherwise to inquire into the fact of such interest, and shall in its discretion determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order to return the survey and location as shall be just.'

The proceedings upon this examination, or at least the order of the court or judge thereon, should appear in the record; for we can only know by the order whether the parties have been permitted to contest the survey before the court. When the interest of parties applying is shown and the order is made, those who claim under the United States by 'pre-emption, settlement, or other right or title,' must intervene, not separately, but collectively, in the name of the United States, and be represented by the district attorney, and any counsel employed by them co-operating with him.

In the present case, it does not appear that any of the precautionary steps required by the act in question were pursued by the nameless others for whom the present motion is made. No pre entation, so far as the record discloses, was made of the interest of any persons against the survey besides those we have named. And it is not permissible for parties to appear in this court and be heard in opposition to the survey approved, who have never participated, or asked to participate, in the proceedings upon the survey in the court below.

These views also dispose of the motion to set aside the dismissal of the appeal in the case of United States v. Nunez.

DENIED.

Messrs. Justices SWAYNE and DAVIS dissented.


text: Talk:United States v. Estudillo/Opinion of the Court


text: Romero v. United States

title: Romero v. United States


text: Talk:Romero v. United States

title: Talk:Romero v. United States