United States v. Gomez
70 U.S. 752 (1865)

Annotate this Case

U.S. Supreme Court

United States v. Gomez, 70 U.S. 3 Wall. 752 752 (1865)

United States v. Gomez

70 U.S. (3 Wall.) 752

Syllabus

1. Though the general rule in cases of appeal undoubtedly is that the transcript of the record must be filed and the case docketed at the term next succeeding the appeal, yet the rule necessarily has exceptions, and where the appellant, without fault on his part, is prevented from seasonably obtaining the transcript by the fraud of the other party or by the ill founded order of the court below or by the contumacy of its clerk, the rule will not apply.

2. Mandamus is the proper remedy, generally speaking, where the petition for appeal is improperly denied, and it is an appropriate remedy to compel the clerk, in case of refusal, to prepare and deliver the transcript; but where it is doubtful whether the remedy would be effectual -- as where the proceedings had been such that the question as to pendency of the appeal itself could not well be determined without an inspection of the record -- a resort to it is not obligatory. In such cases,

Page 70 U. S. 753

if the suit be an appeal in a land case from the California District in which the United States is a party, it may apply to the district attorney for a transcript, the latter as well as the clerk having power under an Act of Congress of March 3, 1861, in such cases of appeal, to transcribe and certify the record to this Court.

3. In proceedings under the Act of March 3, 1851, for the settlement of private land claims in California, where the claimant produces neither a concession nor a grant and does not prove that he ever had possession of the land described in his petition, the claim is rightly disallowed.

4. Where a decree was obtained by fraud, still if in form correct, it is sufficient as against the appellee to sustain the appeal, correct the error, and dispose of the case.

This was an appeal by the United States from a decree of the district court for Southern California under the Act of March 3, 1851, to settle private land claims in California reversing a decision of the Board of Land Commissioners and confirming to one Vincente Gomez a claim for a tract or rancho called the Panoche Grande.

So far as the title involved in the claim of Gomez was concerned, the case could embrace nothing, of course, but the question whether title was shown or not -- whether the claim was well founded or the reverse of it.

As respected this matter of the claim. The petition of the claimant to the governor was for a place described as Panoche Grande, of the extent of three square leagues. Appended to it was the customary informe, but there was no concession or grant, nor sufficient evidence of the issue of a title. It was asserted, but not proved, that the claimant had obtained the map in the record from the proper officer. One witness only of several examined alleged that he had ever seen the grant, and no possession was shown. A neighbor of Gomez, who had lived for twenty years in the vicinity of the land claimed and had known Gomez and his father before him, had never heard, as it appeared afterwards, of Gomez having any land thereabouts. The commissioners rejected the claim. Whether the district court on appeal, if it had examined the case and been acting advisedly, would have done the same can only be inferred. It did not, however, examine the case nor act advisedly. The person who

Page 70 U. S. 754

had been the counsel of Gomez, one Ord, having become the representative at law of the United States as the district attorney for that part of California, entered into a bargain with Gomez to allow a reversal by the district court of the decree of the board and a consequent confirmation of the claim on condition of receiving himself a portion of the land, which afterwards he did receive. By such an abuse and betrayal of his official trust, as the reporter understood the case, the decree above mentioned was obtained. So far as Gomez was concerned, therefore, whatever title he had derived no validity from the decree.

The allegation was, however, that the land was now owned by McGarrahan, who purchased it in December, 1857, after a decree of confirmation was pronounced by the court, who having had no suspicion that there was anything fraudulent in the judicial proceedings by which the title was confirmed, was not affected by Ord's fraudulent act, and who stood in the position of an innocent purchaser without notice.

Representing this person and desiring to get the case dismissed from the court, as the first step in establishing his title, Messrs. Cushing and Stone, in his behalf, set up that this Court had no jurisdiction of the case. Urging with what force they could on the evidence, McGarrahan's title as a bona fide purchaser for value of a title regular on its face, they set up further, pressing it strongly, that the court had no jurisdiction to entertain the appeal.

1st. Because the appeal was not taken within five years from the date of the decree.

2d. Because there was no citation.

3d. Because the appeal was not entered at the term of this Court next succeeding the appeal.

4th. Because the pretended appeal, by virtue of which this entry was made, lost all its legal effect, by reason of the subsequent proceedings, in the district court, on the part of the United States District Attorney.

5th. Because the decree appealed from was not a final decree.

To understand these grounds, a narrative must be borne

Page 70 U. S. 755

with by the reader. Its particulars are complicated and dull, perhaps, as well. The history has been once told in the reports of two years since. [Footnote 1] But not to refer the reader for half the case to a volume which he may not have at hand, the reporter must request him to tolerate a repetition and read it again.

The case was heard in the District Court of Southern California, June 5, 1857, on which day the court delivered its "opinion" confirming the claim for three leagues and ordering "a decree" to be entered up in conformity with the opinion. But no decree was entered at that time. Was it that a thing begun in fraud found its author infirm of purpose, and was followed by irregularity? The cause did not appear. On the 7th January, 1858, a decree in extenso was filed describing the land confirmed as "three" leagues. The decree ended thus:

"And it appearing that, on the 5th June, 1857, the lands had been confirmed by the court to the said claimant, 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 the same year, the court ordered that the claimant "have leave to amend this decree by substituting another in its stead." Gomez did accordingly, on the day following, procure another decree to be entered. It was much like the other, giving the name of the tract and boundaries, as it did, describing it, however, as containing four leagues. This decree ended thus:

"It appearing that heretofore, to-wit, on the 5th June, 1857 &c., the claim in this case had been confirmed by the court, but that it had been omitted by the court to sign the decree of confirmation at the time the same was made. It is therefore further ordered by the court that the same be signed now as then."

In due time, the sin of the district attorney found him out. He withdrew from the country. And on motion of

Page 70 U. S. 756

the United States it was, on the 21st March, 1861, ordered by the court (Ogier, J., sitting),

"That all proceedings heretofore had in the cause be set aside, and the cause be put on the calendar, and set for trial de novo, according to law."

But behold a new incident! Mr. Justice Ogier died. Another judge sat in his seat, and he, thinking that, after the lapse of a year, no power had rested with his deceased brother to alter or modify a decree except to correct some clerical error, "with great reluctance," on the 4th August, 1862, vacated the order of March 21, made by his predecessor.

The case thus stood a decree entered on the 7th of January, 1858 (or possibly on the 5th of February following), as of the 5th of June, 1857.

At the same term, on the 25th August, 1862, on motion in open court -- no citation having been issued -- an appeal was allowed the United States "from the decision and decree of this Court confirming the claim of the claimant herein," and on the 6th October following, the district attorney, reciting that the claimant was "desirous of moving the court to set aside the order for appeal," agreed by entry made on the minutes that all proceedings should be stayed till the next term, "so as to give the claimant an opportunity to make such motion." On 1st December, 1862, a motion to vacate the appeal was made and heard, and on the 4th the order for appeal was vacated; the grounds of the order being that the decree having been entered nunc pro tunc, took effect as from June 5, 1857, and not from 7 January, 1858, thus, of course, making more than five years to the 25th August, 1862, when the appeal was allowed.

And now came an episode, one of a sort rather unusual in judicial doings. The clerk of the district court refused to give a copy of the record. The appellants, represented by Mr. Goold, of the California bar, "special counsel of the United States," had asked for a copy on the 10th October, after the appeal was allowed, and the clerk had promised to

Page 70 U. S. 757

give it to him. Not getting it at the promised time, he asked for it again on the 2d of December; the clerk now informed the counsel "that he had changed his mind on the subject, and would not prepare or deliver a transcript in said cause." Mr. Goold "offered to pay said clerk his customary fees for a transcript of said record, but said clerk persisted in his refusal to prepare one."

In anticipation, it would seem, of what was about to happen, the Congress of the United States had intervened, and on the 6th of August, 1861, passed a statute enacting: [Footnote 2]

"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 to the Supreme Court of the United States, and records so certified by such district attorney under his hand and filed in the Supreme Court of the United States shall be taken as true and valid transcripts to the same intent and purpose as if certified by the clerk of the proper district."

McGarrahan, in turn, applied, 6 April, 1863, to the district court (Haight, J) for an injunction on the clerk and attorney to restrain them from making out any transcript, the ground of the application being that the copy asked for was for the purpose of an appeal, and that no appeal was pending. The court refused an injunction as not a proper remedy, but -- observing that no appeal was pending, or from the lapse of time ever could be taken, and that the district attorney had no power to certify copies under the act of Congress except there was one, and that his certificate would be null, accordingly -- declared that procuring copies on behalf of the United States in such a case was a fraud on the government, and not to be tolerated, and that

"in this case as in most litigations which had come under his observation, private parties were seeking their own ends and

Page 70 U. S. 758

conducting litigations at the expense of the United States, wherein the final result was matter of entire indifference so far as the interest of the government was concerned."

The attorney-general, Mr. Bates, in person now interposed. He wrote to the judge, and by letter sent to Mr. Goold, at San Francisco, directed him to obtain a copy, calling on the district attorney of the United States at San Francisco for any needed "aid." Provision was again made for the clerk's fees. Telegrams were sent across the continent. But it was in vain. Neither request, entreaty, demand, nor offered fees besides, procured the record.

The district attorney accordingly set to work to prepare and certify a roll himself. But the custody of rolls was not with him. They were in the power of the clerk, as had been his own sign manual and official seal. The district attorney could control the one no more than he could control the others. He happened, however, to possess copies of all the parts of the record except the transcript sent up by the late Board of Land Commissioners. Putting all in proper sequence, he prepared a transcript of a record, certifying

"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 for the Southern District of California, except the transcript from the late board &c., in the case of United States v. Gomez, No. 393, for the claim called Panoche Grande."

On this record, the case came here, and was docketed in February, 1864.

Soon after it came, the then counsel of Gomez, or of his successor in interest, made a motion to dismiss the case. The ground of the motion was that the court had no jurisdiction to hear and determine the same:

1. Because the five years within which an appeal can be taken had expired before the appeal was claimed and allowed.

2. Because the entry of the appeal was made without authority and had been set aside.

3. Because there was no citation.

Page 70 U. S. 759

4. Because the appeal was not seasonably prosecuted.

5. Because the transcript of the record was incomplete.

Comparing the reasons now assigned (see supra, p. <|70 U.S. 754|>754) by Messrs. Cutting & Stone, on the regular calling of the case, for refusing to hear, with those just mentioned as assigned two years ago, by other counsel, in advance of regular call, on a motion to dismiss, the reader will perceive that they are in effect, except in the fifth one, the same reasons. And if the court, on the mere motion to dismiss had deemed it best to take up and consider all the five reasons on that motion assigned, and fully and finally to dispose of each one -- the fact that they had refused to dismiss the case would have been, of course, a bar to a further presentation of any of those same reasons now, as a cause for declining to hear it. But they did not deem this best. They considered the 1st, 3d, and 5th of the reasons, in the order in which they stand just preceding. Considering them, they declared them not well founded, holding:

1st. That the decree dated from 7 January, 1858, and not from the prior date of June 5, 1857.

3d. That a citation was unnecessary.

5th. That the transcript certified by the district attorney was sufficient.

But on the 2d and 4th reasons assigned they said nothing, and remarked in conclusion as follows:

"In view of the whole case our conclusion is that the motion to dismiss the appeal must be overruled. Effect of the motion if granted would be to leave the decree below in full force and unreversed, which is a result that at present we are not prepared to sanction. When the cause comes up upon its merits, we shall desire to hear the counsel on the question whether there is any valid decree in the case, and if not as to what will be the proper directions to be given in the cause. Those questions are not involved in the motion to dismiss."

The case had now "come up upon its merits," when, interpreting the old case "as really nothing more than a declaration that the court were not then prepared to pass finally

Page 70 U. S. 760

upon the rights of the parties," the counsel for the appellee put forward all the old points again. Those already distinctly passed upon, the court did not, however, consider open. The second one it considered as disposed of by what was said about the first. And, disencumbered of a quantity of irrelative matter, by which they were surrounded and confused, the questions now before the court were:

1. Whether under the circumstances of this case the appeal, if a final decree, and legally taken and allowed, had been ineffective for want of seasonable prosecution, the general rule being confessedly that the transcript must be filed here and the case docketed at the term next succeeding the appeal.

2. If the appeal had not become ineffective, how did the claim stand upon merits.

3. Whether, if the decree was invalid and void, it had such vitality as that this Court would sustain an appeal upon it, and reform and correct it.

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