text:
Mumford v. Wardwell

ERROR to the Circuit Court for the Northern District of California.

Mumford-plaintiff both below and in error here-brought ejectment against Wardwell for a 'one hundred-vara lot,' No. 186 on the official map of San Francisco. Plea, possession as owner under a good title. The record showed that the case was set down on that issue for trial August 26th, 1863, when the jury found a verdict in these words:

J. E. Mumford v. C. Otis Wardwell, United States Circuit Court, Northern District of California.

We, the jury, find a verdict for the plaintiff, subject to the opinion of the court.

GEORGE AMERAGE, Foreman.

SAN FRANCISCO, August 26th, 1863.

The finding set forth no case, nor had any been previously stated. This verdict was entered of record; but no notice apparently taken afterwards of it. Subsequently, on the 29th August, by consent of counsel, it was ordered that the further hearing of the cause should be set down for September 5th. The record went on:

'And afterwards, to wit, on the 5th day of September A. D. 1863, the following special verdict, by stipulation of counsel, was duly entered of record in said cause, to wit:

SPECIAL VERDICT.

In the Circuit Court of the United States for the Northern District of California.

JAMES E. MUMFORD, Plaintiff, v. CHAS. O. WARDWELL, Defendant.

AT COMMON LAW.

And now, on this 26th day of August, A. D. 1863, come the parties aforesaid by their respective attorneys, and thereupon come a jury, to wit: [the names of the jurors were here given], twelve good and lawful men, who, being duly elected, tried, and sworn, the issues herein joined between said parties well and truly to try, and a true verdict to render according to the evidence, after hearing the evidence of said parties respectively, the jurors aforesaid upon their oaths aforesaid to say;'

Following this was set forth the titles of the respective parties to the lot in controversy. The document ended thus, the signatures of the respective counsel being appended at the end:

'And the jurors aforesaid, upon their oaths aforesaid, do further say that they find a general verdict for the plaintiff, subject to the opinion of the court upon the foregoing recited facts.

'The above is agreed to as a special verdict in this cause.'

It will be observed that in what was here agreed to 'as a special verdict,' there was no such conclusion as is technically usual in special verdict actually found by a jury; that is to say, the finding did not, after presenting the case, refer the decision of it to the court, with the conditional and alternative conclusion, that if the court should be of the opinion, in view of the facts, that the plaintiff was entitled to recover, then they found for the plaintiff, but if otherwise, thy found for the defendant.

But this matter was not the subject of remark either by counsel here or apparently by them in the court below; and the paper agreed to was treated everywhere as a case agreed on and stated for the opinion of the court.

The title of the respective parties as set forth in the case as settled was as follows, that of the defendant, for more clearness, being here stated first:

1. Defendant's title. The lot was what was called a water-lot; that is to say, formed part of certain flats, situated below the high-water mark of San Francisco Bay. The conquest of Mexico, in 1846, having put the whole region about San Francisco into the control of the military authorities of the United States, General Kearney, then acting as Military Governor of California, by deed reciting that he was acting in virtue of authority vested in him by the President of the United States, conveyed these flats (with some unimportant reservations) to the town of San Francisco; a proviso being attached to the grant that they should be divided into lots, and after three months' notice sold at auction to the highest bidder for the benefit of the town. On the 1st day of December, 1849, the ayuntamiento or town council of San Francisco ordained:

'That two hundred fifth-vara town lots be sold at public auction on Friday, the 10th instant.'

On the same 10th of December, 1849, General J. W. Geary, then acting as alcalde of San Francisco (under which title the municipal authority of that city was exercised by officers, either appointed by the military commandant or elected by the people)-by deed reciting that the ayuntamiento or town council of San Francisco, by resolution passed on the 1st day of December, 1849, had ordered that certain town lots should be exposed to public sale and sold to the highest bidder, and that after due public notice, &c., one of the said lots, No. 186, so ordered to be sold, was sold to D. O'Brien, &c.-granted and conveyed the said lot, No. 186, to O'Brien aforesaid.

This deed, like every other deed made by Alcalde Geary during his term of office, consisted of a printed blank on one sheet, filled up at the time it was issued; and like them was not registered or recorded except in the following manner, that is to say: Copies of the deeds consisting of similar blanks, filled up in like manner by the clerk of Alcalde Geary, were retained in the office of the alcalde. These copies were folded up, the name of the purchaser and number of the lot and designation of the class to which it belonged-(that is to say, whether one hundred-vara, fifty-vara, or water-lot) being indorsed thereon, and those of each distinct class were kept in said alcalde's office in a separate bundle; but these several copies were not bound or fastened together in any manner. In that state they passed into the office of the county recorder, on its organization in 1850, where they continued to remain until 1856, when they were bound up in the form of books, each class forming a separate volume. The grant to O'Brien was filled up in the manner above stated, and a copy of it also, made as above stated, was kept in like manner in the bundle composed of copies of grants of one-hundred-vara lots, and so continued until the time it with the other copies was bound up as above-said, in 1856.

Whether General Kearney had authority to make a grant such as he did make to the town of San Francisco, or whether the ayuntamiento or town council of San Francisco ever directed a sale of the lot in question,-which it will be remembered was a hundred-vara lot, not a fifty-vara one,-the case agreed on as a special verdict did not state.

Some time after the sale, that is to say, on the 26th of March, 1851, the legislature of California granted these flats, including this lot, to the city of San Francisco for ninety-nine years. But the statute contained (§ 2) two exceptions. It excepted from its operation those portions of the flats which had been either,

First, 'Sl d by authority of the ayuntamiento, or town or city council, or by any alcalde of the said town or city, at public auction, in accordance with the terms of the grant known as Kearney's Grant to the City of San Francisco,' or

Second, 'Sold or granted by any alcalde of the said city of San Francisco, and confirmed by the ayuntamiento or town or city council thereof, and also registered or recorded on or before the 3d day of April, A. D. 1850, in some book of record, now [that is, on the 26th day of March, A. D. 1851] in the office, or custody, or control of the recorder of the county of San Francisco.'It contained also (§ 3) this enactment as to the effect, viewed as evidence, of any deed, by which any of the lands excepted were conveyed or granted by any ayuntamiento, common council, or alcalde; declaring that it

'Shall be prima facie evidence of title and possession to enable the plaintiff to recover possession of the land so granted.'

Such was the title of Wardwell; defendant below and here.

2. The plaintiff's was a sheriff's deed for the lot, on execution upon a judgment against the city of San Francisco, all confessedly regular, but all subsequent to the statute above quoted.

On this case the court below entered judgment for the defendant, Wardwell.

Mr. T. Ewing, Jr., for the plaintiff in error, Mumford:

It will be conceded by opposing counsel, that General Kearney, as military commandant, had no power to make such a grant as he did. The grant was void. The flats or ground under a navigable bay, remained the property of the United States. On the admission of California into the Union, they became hers. She granted them to the city of San Francisco, and under the sheriff's deed the title is in the plaintiff, unless the defendant brings himself within one of the two exceptions of the statute of 1851. The burden of doing this is on him. Prima facie the case is with the plaintiff.

Plainly the defendant cannot bring himself within the first exception. General Kearney's grant required in terms three months' notice of the sale to be given. Of this sale but ten days' notice, at most, was given. The defendant would therefore bring himself doubtless within the second exception. Admitting then-which we do not admit-that the particular lot described in Geary's deed was ever in fact sold or granted by that alcalde; still the sale does not come within the second exception, and is inoperative, because 1. It was never 'confirmed' in any manner by the ayuntamiento or town or city council of San Francisco. Indeed, no 'confirmation'-that is, no approval subsequent to the sale-was ever perhaps thought of. Alcalde Geary plainly supposed that he was selling under the authority previously given in the ordinance of 1st December, 1849-which ordinance indeed he recites as the authority for his act. But this was a mistake. The ordinance authorized sales of fifty-vara lots alone. The record, which appears, of an ordinance, passed 1st December, to sell fifty-vara lots, is convincing proof that there was no ordinance of the same day to sell hundred-vara lots. Both would have been recorded as certainly as the one was. The sale of hundred-vara lots was therefore supra vires; and void as in excess of the power given.

2. In no sense in which the words in question could have been used by the legislature, does the case stated show a registering or recording of the deed in a 'book of record.' The word 'book' has always signified a number of sheets of paper or parchment, if not bound, yet at least sewed or attached together in some manner, so as to constitute a volume; something that can be opened, turned over, and read. It has never signified, nor been applied to a bundle of folded papers; still less to a single sheet in such bundle.

Messrs. Botts, Dwinelle, and Lake, contra:

We concede that the attempt of General Kearneyt o bestow these lands upon the town of San Francisco was ineffectual. We concede, too, that the State of California, when admitted into the Union, succeeded the United States as sovereign proprietor of all lands situate below ordinary high-water mark and within its borders; including, of course, these flats. The only question then is whether the defendant is included within either of the exceptions of the statute of 1851. . . . We submit that he is within both; or if not, cer tainly that he is within the second.

1. The State of California, who owned the land, had a right to grant the lots to the city-the grant being a pure bounty-on what terms she pleased. She does so grant them. She declares that the deed itself 'shall be prima facie evidence of title.' The effect of this enactment is, that confirmation by the ayuntamiento is primarily to be presumed. The plaintiff must show, affirmatively, that there was no such confirmation. The deed itself, which is of a hundred-vara lot, recites a resolution of the town council, passed December 1st, A. D. 1849, ordering a sale of the lot in question. That a resolution was passed by the council on the same day, ordering a sale of fifty-vara lots, is unimportant. That resolution shows that fifty-vara lots were ordered to be sold, but does not exclude the idea of a resolution being passed at the same meeting ordering hundred-vara lots to be sold.

2. Was the deed 'registered or recorded in some book of record?' We submit that it was so; at least was so within the design of the act. Binding does not constitute a book. A book may be a bound book, but it may also be one not bound; a book stitched or even yet in sheets. The sheets in the recorder's office furnished materials ready to assume the form of bound books, which they did assume under the binder's hands in 1856. The thing to be attained was the preservation of record evidence of the grant in an authentic, permanent, and accessible form; and the purpose evidently was, not to give constructive notice of the existence of such grants, but to prevent the fabrication of spurious titles. They were already 'records,' whether bound or not. Interpreting, then, the statute according to its spirit and intent, these two 'separate bundles' of official copies of official grants, constituted two separate 'books of record.' Suppose a book of records falling to decay, and the sheets becoming loose during the period between the destruction of the old binding and the rebinding, would there be no 'book of records?'

Reply: 1. Whatever might be reasonably argued under the prima facie effect given by the statute to the deed, if there was no evidence of any order of sale by the ayuntamiento on the 1st December, 1849, we submit that by the admitted order to sell fifty-vara lots-the only order in the case-the prima facies of an order to sell one-hundred vara lots on that same day is rebutted. In other words, when we showed a resolution of a public body like the ayuntamiento, passed December 1st, 1849, ordering a sale of town lots of one sort to take place December 10th, 1849, corresponding exactly with the resolution recited by the alcalde, as his authority for making a sale of another and different kind, the presumptions made it incumbent on defendant to put in evidence a resolution of the same date authorizing a sale of the different kind. It is a case where the expressio unius infers the exclusio alterius.

2. A bundle of copies of deeds is a very important part of the 'materials' by the aid of which a book of copies of deeds may be made; but bundled up and 'not fastened together in any manner,' they are not, in that condition, a 'book' in any sense.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Mumford v. Wardwell


text: Talk:Mumford v. Wardwell

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

title: Talk:Mumford v. Wardwell


text:
Mumford v. Wardwell/Opinion of the Court

Plaintiff brought ejectment against the defendant to recover possession of a certain tract of land situated in the city of San Francisco, describing it by metes and bounds, and as the one hundred-vara lot numbered one hundred and eighty-six, as laid down and represented on the official map of the city. Defendant pleaded that he was in the possession of the lot as owner under a good title, which the plaintiff in his replication denied. Parties went to trial upon that issue, and the jury impanelled to try the issue returned the following verdict, as appears by the record: We, the jury, find a verdict for the plaintiff, subject to the opinion of the court.

I. 1. Such a verdict is certainly irregular in form, and it does not appear that it was ever made the subject of any further action. Instead of affirming or amending it, or setting it aside, the parties and the court seem to have treated it as a nullity. No notice whatever was taken of it except that the cause was set for hearing at a subsequent day, but when the time for the hearing came, the parties, by stipulation, entered of record the paper called the special verdict.

Statement of the introductory allegation of the paper is, that a jury came, and that they were duly impanelled and sworn, and that, having heard the parties, they found the facts as therein recited, but it is not signed by the foreman, and the statement in the conclusion is, that the jury return a general verdict for the plaintiff, subject to the opinion of the court upon the recited facts.

Irrespective of the agreement of the parties, it would be difficult to regard the document as the proper foundation of a judgment, because the alleged finding of the jury is not in the alternative, as it should be in a special verdict.

2. Correct practice in such cases is, that the jury find the facts of the case and refer the decision of the cause upon those facts to the court, with a conditional conclusion that if the court should be of opinion, upon the whole matter as found, that the plaintiff is entitled to recover, then they find for the plaintiff, but if otherwise, then they find for the defendant. By leave of the court such a verdict may be prepared by the parties, subject to the correction of the court, and it may include agreed facts in addition to those found by the jury. When the facts are settled and the verdict is reduced to form, it is then entered of record, and the questions of law arising on the facts so found are then before the court for hearing as in case of a demurrer.

3. Verdicts should be general or special, as the jury, in the absence of directions from the court, have nothing to do in respect to a special case. Principal purpose of a special case is, that the court may have time to hear the parties and give the questions of law arising at the trial a more deliberate consideration.

4. Such being the understanding between the court and the bar, the entry is made in the minutes that the verdict is subject to the opinion of the court, but the entry follows the verdict and is no part of the finding of the jury.

5. Where the verdict is general the court may enter judgment on the verdict, or may set it aside and grant a new trial, but the rulings of the court during the trial cannot be revised on writ of error save by a regular bill of exceptions. Judgment also may be rendered on the verdict in a special case, or a new trial may be granted because the verdict is general, and is for plaintiff or defendant.

6. Exceptions to the order of the court in granting a new trial do not lie in any case, and the losing party in case of judgment in a special case cannot except to the rulings of the court during the trial, unless he seasonably reserved the right to turn the special case into a bill of exceptions, because the court has no power, unless otherwise agreed, to render any judgment except upon the verdict of the jury.

7. Special verdicts having a conditiona or alternative finding are the proper foundation of a judgment for either party, as the law of the case on the facts found may require, and consequently the judgment of the subordinate court on such a verdict, whether for plaintiff or defendant, may be re-examined in the appellate tribunal without any bill of exceptions.

Viewed strictly as a special verdict, it is evident that the paper under consideration is defective, because it does not contain the conditional or alternative finding of the jury, and in that respect it is irregular.

But the parties intended to agree, and did agree, that the facts as found were correct, and entered the paper of record at the time under the leave of the court as a correct statement of the facts in the case. They do not appear to have taken any distinction between a special verdict and a special case, or an agreed statement of facts, and the record shows that the judgment of the court was rendered wholly irrespective of any such distinction. Both parties appear to have treated the paper as an agreed statement in the court below, and it has been treated in the same way in this court. Undoubtedly the general verdict was superseded when the paper in question was entered of record, as that was done under the sanction of the court and by the consent of both parties, and it is certain that the parties intended that the controversy should be finally decided upon the facts as therein agreed.

8. Doubt cannot be entertained upon that subject, and yet such a result cannot follow if the paper is held to be a special verdict, unless the opinion of the court is in favor of the plaintiff, as there is no proper conclusion in it to warrant a judgment for the defendant. Regarded as an agreed statement, the paper is in due form, and inasmuch as no objections are made to the proceedings, the court here adopts that view of the subject as the correct one in the case.

II. Reference will first be made to the title of the plaintiff as shown in the agreed statement. He claims title under a sheriff's deed of the lot, bearing date October 17th, 1859, which is in due form, and was duly executed and recorded. Prior to that time judgment had been recovered against the city of San Francisco by one of her creditors, in the sum of one thousand and seventy dollars and twenty-five cents, and the city failed to pay the amount. Execution was duly issued on the judgment and delivered to the sheriff of the county for legal service, and the sheriff, in obedience to the command of the process, sold the lot in question to the purchaser as the highest bidder.

Title of the plaintiff is deraigned through various mesne conveyances from the grantee of that deed, as fully explained in the agreed statement. Parties agree that the lot is below what was, prior to any improvements, the natural high-water mark of the bay, and that prior to March 26th, 1851, it was at all ordinary high tides wholly covered with the tide-waters.

III. 1. Source of the title of the defendant is a deed from the alcalde of the town, dated December 10th, 1849, to Daniel O'Brien, as set forth in the transcript, and as confirmed by the second section of the Water-lot Act. He holds that title, whatever it may be, as deraigned through a regular chain of mesne conveyances from the original grantee. Possession of the premises was in the defendant at the commencement of the suit, and it appears that he had been in the actual possession of the same for the period of three years.

2. Mexican rule came to an end in that department on the 7th of July, 1846, when the government of the same passed into the control of our military authorities. Municipal authority also was exercised for a time by subordinate officers appointed by our military commanders. Such commander was called military governor, and for a time he claimed to exercise the same civil power a that previously vested in the Mexican governor of the department. By virtue of that supposed authority, General S. N. Kearney, March 10th, 1847, as military governor of the territory, granted to the town of San Francisco all the right, title and interest of the United States to the beach and water-lots on the east front of the town, included between certain described points, excepting such lots as might be selected for government use.

Requirement of the grant was, that the land granted should be divided into lots, and that the lots should be sold after three months' notice, at public auction, for the benefit of the town. Pursuant to that requirement, numerous lots were surveyed and laid out, and public sales of the same took place at various times as recited in the agreed statement. Lot one hundred and eighty-six was subsequently sold at public auction by the alcalde of the town, and the same was conveyed by deed or grant in due form to the original grantee, under whom the defendant deraigned his title.

3. But the power to grant lands or confirm titles was never vested in our military governors; and it follows as a necessary consequence that the grant as originally made was void and of no effect. Nothing passed to the town by the grant, and, of course, the doings of the alcalde in selling the lot in question was a mere nullity.

4. California was admitted into the Union, September 9th, 1850, and the act of Congress admitting her declares that she is so admitted on equal footing, in all respects, with the original States. Settled rule of law in this court is, that the shores of navigable waters and the soils under the same in the original States were not granted by the Constitution to the United States, but were reserved to the several States, and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original States possess within their respective borders.

When the Revolution took place, the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them, subject only to the rights since surrendered by the Constitution.

5. Necessary conclusion is, that the ownership of the lot in question, when the State was admitted into the Union, became vested in the State as the absolute owner, subject only to the paramount right of navigation. Corporate powers were exercised by the city of San Francisco prior to the time when the State was admitted into the Union, but she was reincorporated April 15th, 1851, and the agreed statement shows that the lot described in the complaint is within the corporate limits of the city.

6. Certain lots of land situated in the city and within certain described boundaries were designated in the first section of the act of the 26th of March, 1851, as the beach and water-lots of the city. Second section of the act granted the use and occupation of all the land so described to the city for the term of ninety-nine years, with certain exceptions as therein provided. First, exception was made of all lands so described which had been previously sold by authority of the ayuntamiento, or town or city council, or by any alcalde of the town or city, at public auction, in accordance with the Kearney grant. Secondly, same exception was also made of all lands so described which had been granted or sold by any alcalde of the city, and confirmed by the ayuntamiento, or town or city council, and registered or recorded on or before April 3d, 1850, in some book of record now in the office or custody or control of the recorder of the county, and the provision is that all such excepted lands shall be, and the same are hereby, granted and confirmed to the purchasers or grantees or the pr sons holding under them, for the term of ninety-nine years. The lot in question is included within the boundaries described in the first section of that act, and it appears that it is not any part of the lands reserved for public use.

7. Based on these facts, the proposition of the defendant is, that his title is a good one, and that the judgment of the Circuit Court should be affirmed. First, because it appears that the lot being within the first exception, never passed to the city, as it had been previously sold to the original grantee, under whom he claims, at public auction, by an alcalde of the town, in accordance with the terms of the Kearney grant. Secondly, because the lot being within the first section of the Water-lot Act, and having been sold, confirmed, and registered or recorded as required in the third clause of the second section of that act, the title to the same under that sale was ratified to the purchaser by the succeeding clause of that section. Express admission of the parties is, that the lot in question is included within the boundaries described in the first section of the Water-lot Act, and the third section of the same act provides that the original deed by which any of those lands were conveyed by any ayuntamiento, alcalde, or common council, shall be prima facie evidence of the title and possession.

8. Conveyance of the lot in question was previously made by an alcalde, and the deed of conveyance contains the recital that due public notice of the intended sale was given before it was exposed to sale, and sold to the original grantee. Order of sale was passed by the ayuntamiento only ten days before the sale, but there is nothing in the agreed statement to prove that the full notice as specified in the grant to the town had not been previously given as required. Clear inference from the recitals of the deed is, that it had been previously given, and the burden of disproving the presumption is, by the express words of the third section of the act, cast upon the party alleging the contrary.

IV. 1. Suppose, however, it were otherwise, still the judgment of the Circuit Court is correct, because the agreed statement shows that the lot in question was sold by an alcalde, and confirmed by the ayuntamiento, and registered or recorded within the time required, in a book of record in the office, custody or control of the recorder of the county. Confirmation of the sale by the ayuntamiento is clearly shown, but it is insisted by the plaintiff that the deed was never registered or recorded within the meaning of that requirement. Like the military governor, Alcalde Geary claimed to exercise powers vested in the alcaldes under the Mexican rule, and following the usages of some of his predecessors in office, he made his grants in duplicates, and delivered the original to the grantee, and filed the duplicate copy in his office.

2. Duplicate copies retained in the office were labelled with the name of the purchaser, number of the lot, and the class to which the grant belonged. Such deplicates, although regularly classified and indorsed, were not bound in the form of a book, but each class was kept in a separate bundle, and in that state they were passed into the office of the recorder of the county at its organization. They remained there till 1856, when they were bound into the form of books, each class forming a separate volume.

3. Those books are the only registry ever made of the original titles to these beach and water-lots. Unless it be held that the grant in this case was registered or recorded within the meaning of that act, then all the titles are defective, as none of them were registered in any other way. Evidently the legislature assumed that some of the lots were duly registered as required, because the act proceeds to grant and confirm all such land to purchasers or grantees and persons holding under them, for the same term as the other lands are granted to the city.

4. Jurisdiction under the Mexican rule had come to an end more than three years when the Water-lot Act was passed, and it is a reasonable presumption that the legislature knew what the course of proceeding had been in making those grants, and in what condition the evidences of the title were, as they existed in the recorder's office. All the act required was, that it should appear, if the land had been sold by an alcalde, that it had been confirmed by the ayuntamiento, and that it had been registered or recorded in some book of record now in the office, custody or control of the recorder.

5. Most or all of the grants were made before the office of recorder of the county was created, and of course it cannot be held that the act required that the grants should have been recorded by that officer at the time they were issued. No such registry was in existence at the time, and the better opinion is, that the grants of lands so sold and confirmed are duly registered or recorded within the meaning of the requirement in all cases where the duplicate copy of the grant was, at the date of the Water-lot Act, regularly deposited in the office of the county recorder. Although not bound at that date, they had been classified and have since been bound into volumes. Looking at the case in any point of view consistent with the agreed facts, our conclusion is, that the plaintiff shows no title, and that the decision of the Circuit Court was correct.

JUDGMENT AFFIRMED, WITH COSTS.


text: Talk:Mumford v. Wardwell/Opinion of the Court


text:
Silver v. Ladd (73 U.S. 440)

THIS cause came before the court on a motion by Mr. Lander, to dismiss writ of error to the Supreme Court of Oregon.

The CHIEF JUSTICE delivered the opinion.

title: Silver v. Ladd (73 U.S. 440)


text: Talk:Silver v. Ladd (73 U.S. 440)

title: Talk:Silver v. Ladd (73 U.S. 440)


text:
Silver v. Ladd (73 U.S. 440)/Opinion of the Court

The record shows a suit in equity to quiet title to a certain tract of land, which belonged to the complainant's intestate, against the alleged inequitable claims of the defendants.

The complainant claimed title under a settlement certificate issued under the act of Congress of September 27th, 1850, relating to donations to settlers upon the public lands, and the decision of the court was against the title claimed under the authority of that act. There is no doubt, therefore, that the complainant was entitled to his writ of error to bring the judgment of the State court under the review of this court.

Another ground of dismissal more relied upon was, that the bond for prosecution was not taken as required by law. It appears from the record that the writ of error was duly issued; that a bond for prosecution of the writ was executed; that the sureties made oath to their sufficiency before E. D. Shattuck, chief justice of Oregon; that the citation in error was signed by the same judge; and that all these things were done on the same day, namely, the 8th of October, 1866. The law requires that the judge signing the citation shall take good and sufficient security. This, doubtless, is equivalent to a provision that the judge shall approve the bond But no particular form of approval is required. Approva may be inferred from the facts of the transaction. And we think it a fair, and, indeed, almost necessary inference, from the fact of the sureties being sworn to their sufficiency by the judge who signed the citation, that the security was taken by him as required by law.

MOTION DENIED.

I dissent from the views expressed by the court in the second ground assumed in favor of dismissing the writ of error.


text: Talk:Silver v. Ladd (73 U.S. 440)/Opinion of the Court


text:
The Grace Girdler

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a motion made by Mr. Donohue to dismiss an appeal from the Circuit Court of the Northern District of New York.

Lockwood, the appellant, with several others, had filed a joint libel against the schooner Grace Girdler, claiming damages occasioned by her collision with the schoonr Ariel. The aggregate damages sustained by the libellants amounted, according to the libel, to $2754. The libel was dismissed in the District Court, and the dismissal was affirmed on appeal in the Circuit Court. None of the libellants appealed to this court except Lockwood; and while it was apparently obvious that as owner of the vessel much the greater part of the loss had fallen upon him, the record did not aver that the damage which he had suffered exceeded $2000; as a statute requires that it should be, in order to give the court jurisdiction.

It was stated, however, in a brief filed by the appellant, on the motion to dismiss, and stated also by the appellant's counsel at this bar, Mr. Carlisle, that while it had been supposed by the appellant that the fact that his damage did exceed $2000 might be sufficiently inferred by comparison of different parts of the record, yet that the fact would clearly appear by affidavits; and he therefore opposed the motion to dismiss.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Grace Girdler


text: Talk:The Grace Girdler

title: Talk:The Grace Girdler


text:
The Grace Girdler/Opinion of the Court

While it is true that the greater part of the loss fell upon Lockwood as owner of the Ariel, and her belongings, there is nothing in the record which shows that the damage sustained exceeded two thousand dollars. And this is essential to jurisdiction.

It is suggested, however, that, in point of fact, his share of the loss exceeded the jurisdictional sum. And it is the practice of this court in proper cases, when it is claimed that the value in controversy gives jurisdiction, to allow an opportunity to make proof of the fact. And in admiralty cases, where the pleadings may be amended, and new evidence taken in the appellate court, a liberal practice in relation to appeals is specially warranted.

An order will be made, therefore, allowing the appellants to make proof of jurisdictional value, by affidavits, and to file such proof with the clerk of the court within twenty days; in default of which, the cause will stand dismissed.

It subsequently appeared that the affidavits of value were actually on file at the time of the argument of the motion, though not before the court when the leave was given as above. The court thinking them sufficient, treated them on the discovery as if filed in pursuance of the leave. The motion to dismiss was therefore ultimately denied.

title: The Grace Girdler/Opinion of the Court


text: Talk:The Grace Girdler/Opinion of the Court


text:
White v. Cannon

ERROR to the Supreme Court of Louisiana.

Cannon, holding an imperfect claim to a tract of land in that part of Louisiana which, in times when the sovereignty of the region was disputed between Spain and the United States, was called the 'Neutral Territory,' brought a petitory suit, under the civil law of Louisiana, against White, the possessor of a legal title under a patent of the United States.

The facts were these: By statutes of 1823 and 1824, Congress provided for the examination of titles to lands in the district where this one lay. Persons having claims to lands situated in that district were authorized to present the evidence of their claims to the register and receiver of the local land office.

These officers were required to receive and record the evidence and to transmit to the Secretary of the Treasury, who then had charge of the land department of the government, a complete record of all the claims thus presented, with the evidence appertaining to each claim, and an abstract of the whole number of claims, dividing them into four classes; the third class consisting of claims founded upon habitation, occupation or cultivation previous to the 22d of February, 1819. The act of 1823 provided that nothing contained in it should be considered as a pledge by the United States to confirm any claim reported by the register n d receiver.

Under these acts, one Dyson, as assignee of Edward McLaughlin, presented to the register and receiver of the land office a claim, by virtue of habitation, occupation, and cultivation, to a tract of land lying within the so-called 'neutral territory,' containing 640 acres, and proved by the testimony of two witnesses the habitation and cultivation of the tract by McLaughlin previous to February 22d, 1819. In their report to the Secretary of the Treasury, made on the 1st of November, 1824, the register and receiver recommended that this claim, together with many other claims, which were included in the third class, should be confirmed; and by the act of Congress of the 24th of March, 1828, the claims thus recommended were confirmed, excepting a certain number, among which were the claims of Dyson, including the one above mentioned. These excepted claims, said the act, 'are suspended until it is ascertained whether they are situated within the limits of the lands claimed by the Caddoe Indians.' It was subsequently ascertained that the claim was not situated within the limits of the lands claimed by these Indians.

Dyson, and parties claiming under him, were in continued and undisturbed possession of the premises for many years. The petitioner derived whatever estate he had through various mesne conveyances from him.

The title of the defendant arose in this wise: In February, 1835, Congress passed 'an act for the final adjustment of claims to lands in the State of Louisiana,' which authorized any persons having claims to land in that State, that had been recognized by previous laws as valid, but which had not been confirmed, to present them to the register and receiver of the local land office, within two years from the passage of the act, together with testimony in support of the same, and required those officers to record in a book kept for that purpose the notice of every claim thus preferred, together with the evidence in its support. It also authorized them to receive evidence for other individuals who might resist the confirmation of a claim on their own behalf or that of the United States. And it provided that those officers should, at or before the commencement of each session of Congress, make a report to the Secretary of the Treasury of the claims presented before them, together with the testimony, accompanied by their opinion of the validity of each claim, and that the report should be laid before Congress by the Secretary, together with the opinion of the commissioner of the general land office touching the validity of the respective claims. Under this act, John McLaughlin, son of Edward McLaughlin, presented to the register and receiver a claim for the same tract of 640 acres which had been claimed by his father, and produced the testimony of two witnesses by which he proved the habitation and cultivation of the land by him previous to the 22d of February, 1819. The testimony produced appeared to have been taken in 1834, for some reason not disclosed by the record, perhaps, as suggested by counsel, in anticipation of the passage of the act or some act of a similar kind. In 1840, the register and receiver reported this claim and recommended its confirmation. The report was laid before Congress, and the claim was confirmed by the seventh section of the act of July 6th, 1842. The act provided, however, that the confirmation should operate only as a relinquishment of the right of the United States, and should not affect the rights of third parties nor preclude a judicial decision between private claimants for the same land.

In September, 1844, a patent was issued to John McLaughlin pursuant to this act of confirmation, but with the same reservation as contained in the act itself. In June, 1848, he transferred his interest to the defendant who, two years before he purchased, knew that persons holding under Dyson-the presentation of whose claim as assignee of Edward McLaughlin was well known in the vicinity of the land-were in possession of it.

The petitioner prayed a judgment decreeing that he was the rightful and legal owner of the land, and that he recover the same with damages and mesne profits specified.

It was shown conclusively that John McLaughlin never occupied or cultivated the land claimed by him previous to February 22d, 1819, or at any other time, and that the testimony presented by him to the receiver and register was false. In May, 1843, before the patent issued, he made an affidavit, and placed it on record in the land office of the district, that he never had at any time previous to the 22d of February, 1819, resided upon the tract, but that it was within his knowledge that his father, Edward McLaughlin, had resided upon it and cultivated it on that day and for several years previous, and that his father had transferred his claim by sale to Leonard Dyson, who, as his assignee, made entry of the same. The residence upon and cultivation of the land claimed by the father was also abundantly established by other testimony.

The District Court of Louisiana gave judgment for the defendant. On appeal, the Supreme Court of that State reversed the judgment and decreed that the plaintiff be recognized as owner, and have possession, and have judgment for $3833 33/100, and that the defendant pay at the rate of $3 per acre on 480 acres from April 30th, 1859, and that the plaintiff elect, within thirty days after the judgment should become final, whether he would keep the improvements erected on the land on paying for the same $5250 to the defendant, and on his so electing or making default, execution to issue on this part of the judgment against the plaintiff; but on his refusal to retain the said improvements, the defendant to be permitted to remove the same within a reasonable time.

This judgment was rendered on the 31st of January, 1861. A convention of the State of Louisiana had passed an ordinance of secession, purporting to make the State from the Federal Union, on the 26th day of the same month.

This case was now here under the twenty-fifth section of the Judiciary Act.

Hughes, Denver, and Peck, for plaintiffs in error, contended that, upon the facts of the case, namely, that a patent had been issued to the plaintiff in error, White, and that the claim under which the defendant in error holds had never been confirmed by Congress, the judgment of the court below ought to have been in favor of the plaintiff in error. And they suggested for the consideration of this court, that the judgment of the Supreme Court of Louisiana, rendered after the passage of the ordinance of secession, was void.

Mr. Louis Jamin, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows:

title: White v. Cannon


text: Talk:White v. Cannon

title: Talk:White v. Cannon


text:
White v. Cannon/Opinion of the Court

Aside from the affidavit of John McLaughlin, which appears to have been made as if he were troubled with a consciousness of his guilt, the evidence establishes beyond question that he never cultivated any portion of the land claimed by him, and, as stated by the Supreme Court of the State of Louisiana in its opinion, never lived upon it otherwise than under the roof of his father; that Edward McLaughlin, his father, resided upon the land and cultivated it prior to February 22d, 1819, and had no neighbors within the distance of several miles; and that the register and receiver were grossly imposed upon by false and fraudulent testimony.

The defendant purchased with ample means of knowledge, and, we are of opinion, with full knowledge of all the circumstances; of the father's residence and cultivation, and of the son's false and fraudulent representations to secure the land to himself. He knew, two years before he purchased, that occupants of the land held as lessees under the vendor of the plaintiff. The presentation of a claim to the land by Dyson, as assg nee of Edward McLaughlin, was a matter of general notoriety in the neighborhood. And the affidavit of John McLaughlin was on record in the land office of the district, where the defendant obtained his knowledge respecting the claim before making his purchase, and where he was informed, according to his own statement as given by one of the witnesses, 'that the claim being fraudulent made no difference, as the government had given a patent,' and consequently if he 'lost the land the government would be bound to remunerate him, which would be better for him than the land.'

The case is therefore disembarrassed from all questions of the rights of third parties as purchasers of the legal title without notice of alleged outstanding equities. The act of July 6th, 1842, confirming the claim of John McLaughlin, provides that the confirmation 'shall only operate as a relinquishment of the right of the United States, and shall not affect the rights of third parties, nor preclude a judicial decision between private claimants for the same land.'

The patent which followed contained a reservation of similar import, and would, in fact, be subject to a similar reservation by force of the statute, even if it were not expressed.

The reservation allows a judicial inquiry into the merits of opposing claims to the land. Now there could be no opposing claims to land situated like the premises in suit, the legal title of which was in the United States, and with reference to which no promise of title had been made to others by the government, unless such claims arose from conflicting evidence respecting the residence and cultivation of different parties.

The purpose of all the legislation of Congress, with respect to titles in the 'neutral territory,' so-called, of Louisiana, was, among other things, to secure to parties the land which they had resided upon and cultivated during the period when the sovereignty of the country was disputed. It, in truth, invited the occupants to present the evidences of their habitation and cultivation; not indeed promising a title when such habitation and cultivation were established, but naturally exciting expectation that a title would follow, unless grave reasons of public policy intervened and prevented. In some instances there were conflicting claims to the same land, and this was known to Congress. The act of 1835 provided for taking and preserving the evidence offered by parties resisting a confirmation, whether such contest was made on their account, or on behalf of the government.

We are, therefore, of opinion that it was for the benefit of parties thus situated-of claimants who might contest the fact of habitation, occupation, or cultivation-that the reservation was made. The United States, in effect, said: We part with the legal title by our patent, but we intend that it shall enure to the party who actually inhabited and cultivated the land previous to February 22d, 1819, and we allow this matter to be litigated before the judicial tribunals of the country, and to be determined by them.

Such being, in our judgment, the true intent and meaning of the reservation, the case presented can be readily disposed of. It becomes then the ordinary case of a party acquiring, by false and fraudulent means, a legal title to property to which another has the better right, and which he would have obtained, had the facts, as they existed, been truly represented. In such case equity will compel the holder of the legal title to transfer it to the party who was justly entitled thereto.

We admit that, independent of the reservation and of the construction which we have given to it, in the light of attending circumstances and the history of claims of this character, there would be no equitable title in the plaintiff, which could be the foundation of a suit. The act of 1823 did not confer any rights, for that expressly provided that nothing contained in it should be considered as a pledge on the part of the United States to confirm any claim reported by the register and rc eiver. The act of 1828 did not confirm any claim, or make its confirmation dependent upon any future contingency; it only suspended the action of Congress upon teh claim until a particular fact could be ascertained. Nor can the position of the claimant, Edward McLaughlin, or of the plaintiff claiming under him, be assimilated to that of a person who has acquired a pre-emptive right to the land, or any other inchoate right, which entitles him, under the law, to be preferred by the government in the disposition of the legal title, and upon the equity of which he can compel any person, subsequently acquiring that title, to hold it for his benefit. Congress could have bestowed the land in question upon any other party without giving ground for just complaint to Edward McLaughlin, or parties claiming under him. We place the entire right of the plaintiff to maintain the present suit upon the effect of the reservation in the act of July 6th, 1842.

The judgment of the Supreme Court of Louisiana adjudges and decrees that the plaintiff be recognized as the lawful owner of the land, and that a writ of possession issue. Treating this as substantially equivalent to a decree that the defendant convey the legal title acquired by the patent to the plaintiff, and surrender possession to him, we affirm the judgment. As to that portion of the judgment which awards damages to the plaintiff for the use of the premises, and compensation to the defendant for improvements, we are not called upon to express an opinion, as they are matters not brought under our supervision by the twenty-fifty section of the Judiciary Act. They are provisions made under the local laws of the State.

The objection that the judgment of the Supreme Court of Louisiana is to be treated as void, because rendered some days after the passage of the ordinance of secession of that State, is not tenable. That ordinance was an absolute nullity, and of itself alone, neither affected the jurisdiction of that court or its relation to the appellate power of this court.

JUDGMENT AFFIRMED.

Mr. Justice CLIFFORD dissented.

See Walker v. Villavaso, supra, 124.

title: White v. Cannon/Opinion of the Court


text: Talk:White v. Cannon/Opinion of the Court


text:
Kail v. Wetmore Same

ERROR to the Circuit Court for the Northern District of Illinois.

On motion of Mr. Goudy, opposed by Mr. Peck, to dismiss the writ.

Mr. Justice NELSON stated the facts and delivered the opinion of the court.

title: Kail v. Wetmore Same


text: Talk:Kail v. Wetmore Same

title: Talk:Kail v. Wetmore Same


text:
Kail v. Wetmore Same/Opinion of the Court

The judgment was rendered on the 10th of November, 1867. The writ of error was sued out the 19th, returnable the first day of the next term, which was the 2d day of December, a supersedeas bond given on the 29th of the same month, which was in time, excluding Sunday. The case thus far is within the cases of Villabolos v. United States, and United States v. Curry, except the signing and service of the citation.

But the decisive objections to the regularity of the proceedings are as it respects the description of the parties. There are but three persons plaintiffs in error. In one of the cases the citation contains four. In the other the names in the citation are altogether different from those in the writ of error, and the bond given in each case to stay the execution misdescribes the parties to the judgment, reciting but one person as plaintiff in error, when there are three. The numerous errors in the proceedings are remarkable, and for which both cases must be

DISMISSED.


text: Talk:Kail v. Wetmore Same/Opinion of the Court


text:
Vose v. Bronson

APPEAL from the Circuit Court for Wisconsin.

In December, 1856, the La Crosse and Milwaukee Railroad Company, to secure ten millions of dollars in bonds, to be issued by them, executed a mortgage o Bronson, Soutter, and Knapp, as trustees for the bondholders. This mortgage was amended in 1858, so as to limit the issue to four millions. Bonds to that amount were issued, and became a lien on the road. In consequence of the failure of the company to provide for the payment of interest, the trustees, in 1859, instituted proceedings in the Federal court of Wisconsin, to foreclose the mortgage; which proceedings, in 1862, passed to a decree. The road in 1863, was sold. After the decree, but before the sale, one Vose (the appellant), who had not been made a party defendant to the suit of foreclosure, filed a bill against the trustees just named, asking to come in and share in the proceeds of the sale of the mortgaged property in their hands.

The bill set forth that before the execution of the mortgage, but in immediate contemplation of it, the La Crosse Company had agreed to buy a large quantity of railroad iron of a firm to whose rights the complainant had succeeded, giving to them bonds to the extent of about $714,000 in payment, at the rate of eighty cents on the dollar; that it was well understood between the parties that the firm, which was one dealing extensively in railroad iron, took the bonds, not to hold as investments, but for commercial and immediate use; that to guard against loss to the firm by a depreciation in the markets of the bonds thus to be assigned to it, by the company's selling any of those which they yet retained at a less rate than the 80 per cent., it was agreed that if the company should sell any of their bonds to any one during a certain term named, at a less rate than this one, then, that the company should deliver to the firm so many additional bonds as would pay the firm for the iron in full, estimating the bonds already given and those to be given at the lowest rate at which any bonds had been sold. The bill further set forth that the iron (10,474 tons) was delivered to the company, and by them used in making their road, and now formed a material ingredient in the value of the property sold.

Admitting that the company had issued, sold and delivered the whole four million dollars of bonds (so that on the face of the bill it appeared that the company had the control of no more bonds), the bill set forth that it had sold a large amount of them as low as forty cents on the dollar; that the firm, needing to 'realize' on the bonds assigned to them, had been compelled to sell at that same rate, and that the effect of the company's thus selling at 40 per cent. was, that the firm had been paid but half the stipulated price for their iron. It set forth, moreover, that in fixing the claims which the respective bondholders had upon the proceeds of the sale of the mortgaged premises, a portion of the bonds were, by the final decree of foreclosure, cut down from the value apparent on their face to 40 per cent., on account of their having been sold at a discount; and that

The decree of foreclosure having been entered for. $2,794,600

There remained as balance an unappropriated lien of. 1,205,400

---

Part of the original mortgage for. $4,000,000

That he, Vose, had not been made by the trustees, in their suit for foreclosure, a party defendant as he ought to have been, so that he might have been enabled to set up and insist upon his claim under their bill of complaint; that his claim was accordingly not foreclosed or impeached, and that the decree ought to be so modified as to let it in. The insolvency of the La Crosse Company was alleged, and notice of the contract and of its breach to all the parties in the principal cause. The bill accordingly prayed that as the firm was to be paid only in bonds, and did not receive enough to pay them, that the requisite amount of bonds, that is to say, another $714,000, might be executed and delivered to them, or at any rate that they might stand in the same position as if such requisite number had been executed and delivered to them; and that the decree might be p ened and the complainant let in so as that his equities might be provided for out of the unappropriated lien in the mortgage, which it was stated was sufficient to provide for them.

The bill, on demurrer to it, was dismissed by the Circuit Court. Appeal here.

Mr. E. G. Ryan, for the appellant:

The appellant having delivered his property and received his bonds, finds their value depreciated one-half, by the railroad company's action-fraudulent without doubt-in selling all their bonds of the same issue, at half the price at which he took his, without reserving any whatever to fulfil their contract to him arising in case of a sale of any at such a price. The effect in law (and in fact, also, as the thing proved), was to pay him but half the stipulated price for his iron. The bill seeks payment of the unpaid half.

Will it be urged that our bill is in prejudice of subsequent encumbrancers? It cannot be rightly so urged. Under the mortgages, each bondholder was entitled to his pro rata share of four millions of dollars. But, beyond that, the mortgage gave him no right. And it is unimportant to any bondholder how the rights of other bondholders accrue, provided that the whole principal sum in not swelled beyond four millions of dollars. The mortgage has that capacity. Four millions of bonds were issued. But the decree of the court finds less than three millions due upon the whole issue. And there remains an undisposed principal of upwards of a million of dollars, which the mortgage can cover without wrong to any bondholder under it.

Had the railroad company issued in fact, but $2,794,600 of bonds (the principal sum found due by the decree), the complainant would clearly have had a right to satisfaction until the mortgage was charged with the full principal sum of four millions of dollars. Yet practically, and as judicially decided, that is all that they have issued.

The case is strong in natural equity. In 1857, the complainant furnished all the iron, constituting the track of this railroad, at a cash price of $605,000. In 1863, when, as is matter of common knowledge, the value of such iron had nearly doubled, the road was sold as the fact is for about $2,800,000. It will be hard indeed, if the complainant is to be left remediless for the great loss which he has sustained, and of which the defendants have the whole profit. Yet if the decree be affirmed he will be so left.

Messrs. Cary and Carlisle, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Vose v. Bronson


text: Talk:Vose v. Bronson

title: Talk:Vose v. Bronson


text:
Vose v. Bronson/Opinion of the Court

The question presented by this record is of easy solution. If Vose had brought suit against the La Crosse and Milwaukee Railroad Company for a breach of their contract, the interpretation of it would have been a proper subject of inquiry, but the decision of this case does not depend on the disposition of that question. The appellant places his claim for relief, on his right to have an outstanding equity with the La Crosse Company adjusted in the foreclosure suit, and his demand attached to the foot of the mortgage. To do this, there must be a power somewhere to enlarge the mortgage, and where is it lodged? Certainly not with the trustees, for their duty is to see that the security held by them for their cestui que trusts is enforced according to the terms of the deed. They could neither enlarge the mortgage, nor consent to its enlargement. The court could not do it, nor the La Crosse Company, as it had covenanted with the trustees in behalf of the bondholders, that it would only issue four millions of dollars in bonds. The rights of the bondholders were fixed by the terms of the mortgage. The value of the bonds as an investment, depended in a great measure on the number to be issued, and doubtless, each purchaser before he bought, had information of the character of the security on which he relied. The property might be very well a safe security for four millions of dollars, and very unsafe for any additional amount.

The doctrine contended for woud utterly destroy the marketable value of all corporate securities. No prudent man would ever buy a bond in the market, if the provisions made for its ultimate redemption could be altered without his consent.

But it is said, as the court rendered a decree for less than the face of the bonds, equity will step in and allow the appellant to apply the vacuum of principal secured by the mortgage, to liquidate his claim. The answer to this is, that it does not concern the appellant whether the court rightfully or otherwise reduced a portion of the bonds. The bondholders, whose bonds were thus reduced, are the only parties in interest, who could have any just cause of complaint against the action of the court, and if they did not feel aggrieved, no other person has any right to complain. The security of the mortgage extended to four millions of bonds only, and whatever amount the court should ascertain was due on those four millions, was the amount secured, and no more.

If Vose had been made a party defendant to the foreclosure suit, the decree would have been the same. But he was not a necessary party to that suit. The trustees, as the representatives of all the bondholders, acted for him, as well as the others. It would be impracticable to make the bondholders parties in a suit to foreclose a railroad mortgage, and there is no rule in equity which requires it to be done.

DECREE AFFIRMED.

title: Vose v. Bronson/Opinion of the Court


text: Talk:Vose v. Bronson/Opinion of the Court


text:
Alviso v. United States (73 U.S. 457)

THIS was a motion to reinstate on the docket an appeal from the District Court for the Northern District of California, that had been dismissed at the last term.

The decree was rendered in the United States District Court for California, in favor of the United States, on the 8th September, 1863, and an appeal taken on the 23d February, 1864, returnable at the next term of the court, and the record brought up to this court and filed on the 11th November, 1864, which was in time. At the December Term, 1866, the cause was dismissed for want of a citation. The counsel for the appellant now produced evidence to show that a citation was, in fact, signed by the judge at the time of the allowance of the appeal, and duly served on the district attorney representing the United States, on the same day, and afterwards filed in the clerk's office. In July, 1866, the building in which the clerk's office was kept was partially destroyed by fire, which occasioned great confusion, and some loss of the records, and which embarrassed and delayed the appellant in procuring the evidence of the above facts, and in connection with the distance from the place where this court is held, sufficiently accounted, as the court said, for not making the motion at the last term.

Mr. J. H. Bradley, in support of the motion; Mr. Wills, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Alviso v. United States (73 U.S. 457)


text: Talk:Alviso v. United States (73 U.S. 457)


text:
Alviso v. United States (73 U.S. 457)/Opinion of the Court

As the omission to return the citation appears to have arisen from the neglect of the clerk, if it had been shown that it remained in the office, a certiorari would have been sent down on a prayer of diminution; but as it has been satisfactorily proved to have been lost or destroyed, it is not a case for a certiorari.

The Palmyrd #fn-s-s is an authority for granting the relief sought at the succeeding term of the court in a case like the present. In that case, when the cause was called at the February Term, 1825, upon an inspection of the record, it did not appear from the transcript that there had been a final decree rendered in the court below, and for this reason the appeal was dismissed. At the next term, it having been shown the omission was the error of the clerk in making out the transcript, the cause was reinstated on the docket. Mr. Justice Story says, 'The reinstatement of the cause was founded, in the opinion of the court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases.'

MT ION GRANTED.


text: Talk:Alviso v. United States (73 U.S. 457)/Opinion of the Court


text: Doe Lessee of Poor v. Considine

title: Doe Lessee of Poor v. Considine


text: Talk:Doe Lessee of Poor v. Considine

title: Talk:Doe Lessee of Poor v. Considine