United States v. Fremont
59 U.S. 30 (1855)

Annotate this Case

U.S. Supreme Court

United States v. Fremont, 59 U.S. 18 How. 30 30 (1855)

United States v. Fremont

59 U.S. (18 How.) 30

Syllabus

Where the record is not filed by the appellant, within the time prescribed by the rules of this Court, and the appellee files a copy of it, the appeal will be dismissed upon his motion.

Also, where a mandate went down from this Court to the district Court of the United States for the Northern District of California, and that court entered a decree according to the mandate, this furnishes no ground for an appeal, and the case will be dismissed upon that ground.

As this case involved a principle somewhat novel, and especially an important point of practice, the reporter thinks it proper to insert the papers upon which the motion to dismiss the appeal was founded.

"The appellee, J. C. Fremont, by his counsel, moves to dismiss this appeal and brings here into Court the certificate of the Clerk of the District Court of the United States for the Northern District of California stating the case and certifying the appeal as prayed, allowed, and sued, at the instance and prayer of the attorney for the United States for the district aforesaid, for and on behalf of the United States, in the month of July of the present year 1855:"

"And for causes of dismissal, the following are assigned and shown."

"1. That the said appeal is in fact and truth nothing but an appeal from the opinion and decree and mandate of this Supreme Court of the United States pronounced between the same parties, at December term, 1854, reported in 58 U. S. 17 How. 553, 58 U. S. 576, entered of record in the said District Court of the United States for the Northern District of California, in strict conformity with the opinion and mandate of this Supreme Court, and made the decree of said district court. Wherefore the

Page 59 U. S. 31

appeal, so as aforesaid prayed and allowed, is subversive of order and due subordination, in derogation of the supreme judicial power and authority of the Supreme Court of the United States as established by the Constitution, unlawful in the inception, tending in its consequences, if indulged, to vexatious delay and endless litigation."

"2. Because the party appellant has failed to docket the case and file the record thereof with the clerk of this Court within the first six days of this term, as required by the rules of this Court."

"The appellee further moves for permission to take out a copy of the dismission, when granted, forthwith in order to prevent further delay."

"JONES, CRITTENDEN, and BIBB, for Appellee"

"Dec. 14, 1855"

"MANDATE SUPREME COURT UNITED STATES"

"United States of America, ss."

"The President of the United States of America, to the Honorable the Judge of the district Court of the United States for the Northern District of California:"

"Greeting:"

"Whereas lately, in the District Court of the United States for the Northern District of California, before you, in a cause between the United States, appellants, and John C. Fremont, claimant and appellee, the decree of the said district court was in the following words, namely:"

" This cause coming on to be heard at the above stated term, on appeal from the final decision of the commissioners to ascertain and settle private land claims in the State of California, under the Act of congress approved March 3, 1851, upon the transcript of the proceedings and decision, and the papers and evidence on which said decision was founded, and also upon the testimony and depositions taken before this Court, and the arguments of counsel for the United States and for the claimant being heard, it is ordered, adjudged, and decreed that the decision of the said commissioners be in all things reversed and annulled and that the said claim be held invalid and rejected, 'as by the inspection of the transcript of the record of the said district court which was brought into the Supreme Court of the United States, by virtue of an appeal agreeably to the act of congress in such cases made and provided, fully and at large appears.'"

"And whereas in the present term of December, in the year of our Lord one thousand eight hundred and fifty-four, the said cause came on to be heard before the said Supreme Court on the said transcript of the record, and was argued by counsel, on

Page 59 U. S. 32

consideration whereof it is the opinion of this Court that the claim of the petitioner to the land as described and set forth in the record is a good and valid claim. Whereupon it is now here ordered, adjudged, and decreed by this Court that the decree of the said district court in this case be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court for further proceedings to be had therein, in conformity to the opinion of this Court."

"You therefore are hereby commanded that such further proceedings be had in said cause, in conformity to the opinion and decree of this Court as according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding."

"Witness the Honorable Roger B. Taney, Chief Justice of said Supreme Court, the first Monday of December, in the year of our Lord one thousand eight hundred and fifty-four."

"WM. THOMAS CARROLL"

"Clerk Supreme Court of the United States"

"Endorsed: Filed, June 4, 1855"

"JOHN A. MONROE, Clerk"

"By W. H. CHEVERS, Deputy"

"Decree of United States District Court"

"The United States, appellants"

"v. Stated term, June 27, 1855"

"John C. Fremont, appellee"

"Comes now the said John C. Fremont, by his attorney, and the United States by theirs also come, and the mandate of the Supreme Court of the United States having been filed in this Court, duly authenticated under the seal of the said supreme court, and certified by the clerk thereof -- whereby it appears that at the December term of said Supreme Court, 1854, that is to say, on the 10th day of March, 1855, upon the appeal by the said John C. Fremont, from the decree of this Court, reversing the decision of the said commissioners, and holding invalid and rejecting the claim of the said John C. Fremont, the said appeal having come on to be heard before the said Supreme Court, upon the transcript of the record of this Court, the said Supreme Court rendered, and pronounced a judgment and decree in the following words to-wit:"

" It is the opinion of this Court that the claim of the petitioner to the land as described and set forth in the record, is a good and valid claim. Whereupon, it is now here adjudged and decreed by this Court that the decree of the said district court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the

Page 59 U. S. 33

said district court for further proceedings to be had therein in conformity to the opinion of this Court."

"It is therefore ordered, adjudged, and decreed, by this Court that the claim of the said John C. Fremont, to the land as described and set forth in the record, is a good and valid claim, and that the said claim be and the same is hereby confirmed to the extent of ten square leagues, the quantity specified in the original grant, set forth in the record, and within the limits therein mentioned, the said land to be surveyed in the form and divisions prescribed by law for surveys in California and in one entire tract."

"M. HALL MCALLISTER"

"Circuit Judge United States District of California"

"OGDEN HOFFMAN, Jr."

"United States district Judge"

"Endorsed: Filed June 27, 1855"

"JOHN A. MONROE, Clerk"

"By W. H. CHEVERS, Deputy"

"Notice of Appeal"

"District court of the United States in and for the"

"Northern District of California"

"The United States, appellants"

"v."

"John C. Fremont, appellee"

"Sir: The United States intend to appeal from the final decree of the court in this cause."

"S. W. INGE"

"United States district Attorney"

"TO JOHN A. MONROE, Esq., Clerk"

"Endorsed: Filed, June 27, 1855"

"JOHN A. MONROE, Clerk"

"By W. H. CHEVERS, Deputy"

"District court of the United States in and for the"

"Northern District of California"

"The United States, appellants"

"v."

"John C. Fremont, appellee"

"Sir: The United States intend to appeal from the final decree of the court in this cause."

"S. W. INGE"

"United States district Attorney"

"TO VOLNEY E. HOWARD, Esq. "

Page 59 U. S. 34

"Marshal's Return"

"I served this notice in person, by copy, on V. E. Howard this 27th day of June, 1855."

"W. H. RICHARDSON, United States Marshal"

"By Q. E. SEWELL, Deputy"

"Endorsed: Filed, June 28, 1855"

"JOHN A. MONROE, Clerk"

"By W. H. CHEVERS, Deputy"

"

I

n the district Court of the United States"

"for the Northern District of California"

"The United States Appeal from the board of commissioners"

"v. to ascertain and settle private land claims"

"John C. Fremont in California"

"Bill of exceptions"

"Be it remembered that on the return of the mandate from the Supreme Court of the United States, in the appeal from the decision of this Court heretofore rendered in this cause, the said John C. Fremont moved the court to pronounce a decree in pursuance of said mandate, in the form of the decree in that behalf in the record of this cause appearing, excepting the following words, to-wit: 'The said land to be surveyed in the from and divisions prescribed by law for surveys in California, and in one entire tract,' to which motion the attorney for the United States objected, and after arguments, the court, on June 27, 1855, refused to render the decree as prayed by the said John C. Fremont, but added thereto the words above quoted, as to the mode of survey, and rendered the decree in this behalf accordingly, to which decision of the court adding the above quoted words and to the said portion of said decree directing the mode of survey, the said John C. Fremont by his counsel, at the proper time, duly excepted, and prayed that this his exception be signed and sealed by the court, and made a part of the record of this cause, which is accordingly done."

"M. HALL MCALLISTER"

"Circuit Judge United States for the District of California, and Presiding"

"Officer United States District Court"

"OGDEN HOFFMAN, Jr."

"United States district Judge, Northern district of California"

"Endorsed: Filed, June 28, 1855."

"JOHN A. MONROE, Clerk"

"By W. H. CHEVERS, Deputy "

Page 59 U. S. 35

"Order granting Appeal"

"At a stated term of the District Court of the United States of America for the Northern District of California, held at the courthouse in the City of San Francisco on Monday, the 23d day of July, in the year of our Lord one thousand eight hundred and fifty-five."

"Present:"

"HON. M. H. McALLISTER, Circuit Judge"

"HON. OGDEN HOFFMAN, JR., District Judge"

"The United States, appellants"

"v."

"John C. Fremont, appellee"

"In this case, on application of the United States attorney, made in open court, it is ordered by the court, that an appeal on behalf of the United States from the final decision of this Court rendered in said cause at the present term be and the same is hereby granted."

"And that a certified transcript of the pleadings, evidence, depositions, and proceedings in the said cause be sent to the Supreme Court of the United States, without delay."

"Endorsed: Filed July 23, 1855"

"JOHN A. MONROE, Clerk"

"by W. H. CHEVERS, Deputy"

"UNITED STATES OF AMERICA"

"Northern district of California"

"I, John A. Monroe, clerk of the District Court of the United States of America for the Northern District of California, do hereby certify that the annexed pages from one to one hundred and twenty inclusive, contain a full, true, and correct transcript of the record on file from the Board of Land commissioners, together with the pleadings, depositions, orders, opinion, decrees, bond, mandate of the Supreme Court of the United States, and the proceedings thereon in this Court, filed in this office in the case entitled The United States, appellants v. John C. Fremont, appellee."

"In testimony whereof I have hereunto set my hand and affixed the seal of the said court, this 18th day of October, in the year of Lord one thousand eight hundred and fifty-five, and of our Independence the eightieth."

"JOHN A. MONROE, Clerk"

"by W. H. CHEVERS, Deputy"

Page 59 U. S. 36

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