United States v. Vigil
77 U.S. 423 (1870)

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U.S. Supreme Court

United States v. Vigil, 77 U.S. 10 Wall. 423 423 (1870)

United States v. Vigil

77 U.S. 423

Syllabus

1. The Court refused to dismiss an appeal by the United States from the Territory of New Mexico, though, contrary to the usually obligatory rule of practice, a transcript of the record had not been made in this Court until about two years after the end of the next term after the

Page 77 U. S. 424

allowance of the appeal, it appearing, in excuse for the delay, that an appeal had been properly prayed for in open court at the time that the judgment was rendered, and was then granted, but that the clerk, for some unexplained reason, had neglected to make an entry in his minutes of what was thus done; that the district attorney, on whose application the appeal was granted, not long after retired from office; that so soon as the omission of the clerk was brought to the notice of a new district attorney of the United States, succeeding, he made application to the court to amend the records so that it might appear in accordance with the facts that the appeal had been prayed for at the term in which the judgment was rendered, that the court granted the application and ordered an entry to be made nunc pro tunc of an appeal asked for at the term when the judgment was given, and that it be granted.

2. The Court adverts to the fact that the government is obliged to trust the conduct of cases in remote parts of the country to subordinate agents, and that where the distance of the seat of government is so great from them as it was here, the difficulty of communication should be taken into view when considering the question of delay.

The suit was brought by Vigil and others to recover a parcel of land in that territory under a special act of Congress passed 21 June, 1860, which gave the right of appeal to either party if asked for within one year from the rendition of the judgment. A judgment was rendered against the United States in the court below at the January Term, 1867, from which an appeal was sought to be taken. The only question was as to its regularity. It was maintained on the part of the government that the appeal was prayed for by the district attorney of the United States in court at the time already mentioned, when the judgment was rendered, and was granted, but that the clerk for some unexplained reason neglected to make an entry in the minutes of what was thus done.

This omission of the clerk did not appear to have been discovered by the district attorney till January Term, 1869. In the meantime, this officer in the territory had retired from the office, and when the omission was brought to his notice by his successor, he expressed his surprise and stated that he not only prayed for the appeal but charged the clerk

Page 77 U. S. 425

to make the entry, and, as he believed, gave him a memorandum to that effect. As soon as the omission came to the knowledge of his successor, he made an application to the court below to amend the record so that it might appear that the appeal had been prayed for, according to the facts, at the term in which the judgment was rendered.

The court granted the application and ordered that an entry be made, nunc pro tunc, of an appeal in the cause, asked for at the January Term, 1867, and that the same be granted. But, of course, no transcript of the record was returned and filed in this court before the end of the next term after the allowance of the appeal regarding it as of that date.

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