The 9th section of the Act of 26 May, 1824, relative to the
action of the Attorney General in cases of appeal, is only
directory, and its nonobservance does not vitiate an appeal
provided it be taken by the district attorney and sanctioned in
this Court by the Attorney General.
An attorney or solicitor cannot withdraw his name, after it has
been entered upon the record, without the leave of the court, and
the service of a citation upon him, in case of appeal, is as valid
as if served on the party himself
The opinion of the Court to the case of
Villabolos v. United
States, ante, p.
48 U. S. 81, again
asserted --
viz., that the appellant must prosecute his
appeal to the next succeeding term of this Court, and whenever the
appeal is taken by entering it in the clerk's office, the adverse
party must be cited to appear at that time.
Therefore, where an appeal was filed in the clerk's office in
November, 1846, and there was no citation to the adverse party to
appear on 7 December, 1846 (the commencement of the succeeding term
of this Court), the case was not removed upon that appeal.
A party may take a second appeal where the first has not been
legally prosecuted. But to the present case the order of the court
cannot be construed as a grant of a second appeal.
The appeal must therefore be dismissed on motion.
This was an appeal from the District Court of the United States
for Louisiana involving the title to a large body of land in that
state. The proceedings of the district court are sufficiently set
forth in the opinion of the Court and in the argument of Mr. Curry,
to which the reader is referred.
Page 47 U. S. 110
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made to dismiss this case for want of
jurisdiction.
The appeal was taken from a decree of the District Court of the
United States for the Louisiana District confirming to the
appellees certain lands which they claimed under a Spanish grant.
The decree was made on 2 May, 1846. But a new trial was afterwards
granted in order that third persons who also claimed title to the
land might have an opportunity of intervening in the suit according
to the practice of the Louisiana state courts. Subsequently,
however, the petition of the interveners was withdrawn and another
decree was passed and signed on 26 June, 1846, again confirming the
title of the present appellees. It is not material to this inquiry
whether the first or second decree is to be regarded as the final
one in the district court.
This proceeding by new trial (instead of rehearing, as in
chancery) and intervention was irregular. And the court seems to
have followed the Louisiana state practice, when the acts of
Congress direct that the proceedings in such cases shall be
conducted according to the rules of a court of equity. 5 Stat. 676;
2 Stat. 53.
On 5 November, 1846, the district attorney presented a petition
to the district judge praying an appeal, who thereupon passed an
order, endorsed on the petition, directing it to be filed and the
appeal granted. Further orders of the district judge are also
endorsed on the petition -- one directing the appeal to be
returnable to the second Monday of January, 1847, another extending
the time of the third Monday in February, and another dated 13
February, 1847, in the following words:
"Upon motion of Thomas J. Durant, United States District
Attorney, that the land cause No. 1, and entitled as above, appeal
has been granted from the judgment rendered therein to the Supreme
Court of the United States, at Washington, and that the said appeal
has been made returnable on a subsequent day during the present
session of the Supreme Court, and not
Page 47 U. S. 111
on the first day of said term, as the practice generally is, to
the end that said case of appeal might have its chance of being
tried during the present session, and as no object will be gained
by issuing citation to the appellees directing them to appear at
any other time than on the first day of the said term of said
court, it is therefore ordered that the order upon the said
petition of appeal in said cause be so amended as to make it
returnable on or before the commencement of the next annual session
of the Supreme Court."
Afterward, on 14 August, 1847, a citation was issued requiring
the appellees to appear in this Court on the first Monday in
December then next following. The citation states the decree from
which the appeal was made to have passed on May 2, 1846, and refers
to the order above recited as an appeal granted on the day the
order bears date. It was served, as appears by the return of the
marshal, on 8 September following on the attorney whose name
appeared on the docket as the attorney for the petitioners, who are
the present appellees. But the affidavit of the attorney has been
filed here stating that he was not at that time their attorney --
that his fee had been paid, and he had been discharged from all
duty as attorney or counsel for the parties, and had so informed
the marshal at the time of the service.
In this state of the facts, several objections have been made to
the validity of this appeal. Two of them may be disposed of in very
few words.
It is said that the record does not show that this appeal was
taken by the direction of the Attorney General, according to the
provisions of the 9th section of the Act of May 26, 1824. We think
there is no force in this objection. That section is merely
directory to the officers of the United States, and intended to
guard more effectually the public interests. And if the appeal is
taken by the district attorney and sanctioned in this Court by the
Attorney General, it is sufficient, even though it should appear
(which it does not in this instance) that the appeal was taken
without his previous direction.
So too as to the service of the citation on the attorney. It is
undoubtedly good and according to the established practice in
courts of chancery. No attorney or solicitor can withdraw his name
after he has once entered it on the record without the leave of the
court. And while his name continues there, the adverse party has a
right to treat him as the authorized attorney or solicitor, and the
service of notice upon him is as valid as if served on the party
himself. And we presume that no court would permit and attorney who
had appeared at the trial with the sanction of the party, express
or implied, to withdraw
Page 47 U. S. 112
his name after the case was finally decided. For if that could
be done it would be impossible to serve the citation where the
party resided in a distant country or his place of residence was
unknown, and would in every case occasion unnecessary expense and
difficulty unless he lived at the place where the court was held.
And so far from permitting an attorney to embarrass and impede the
administration of justice by withdrawing his name after trial and
final decree, we think the court should regard any attempt to do so
as open to just rebuke.
The remaining objection is a more serious one. Has this appeal
been taken and prosecuted within the time limited by the acts of
Congress? The district court appears to have acted in relation to
the appeal as it did in its previous proceedings, under the
erroneous impression that it must follow the practice of the
Louisiana state courts, without adverting to the acts of Congress
which conferred on the court the special jurisdiction it was
exercising, and which prescribe the manner in which it shall be
exercised. There was no necessity for the petition to the district
judge to grant the appeal. It was a matter of right given by law
after final decree, which the court could not refuse. Nor had it
any power to prescribe the time or manner in which the record was
to be transmitted and the case brought before this Court. That,
too, is regulated by acts of Congress which the court can neither
change nor modify. All the orders, therefore, upon this subject
were unauthorized and void. And the validity of the appeal depends
altogether upon the laws of the United States, without reference to
the laws of Louisiana or orders of the district court.
The acts of Congress concerning appeals in cases of this
description were fully considered by the court in the case of
Villabolos v. United
States, decided in the early part of the present
term, and the previous decisions of this Court referred to and
examined. And the Court in that case held that the appellant must
prosecute his appeal to the next succeeding term of this Court, and
the adverse party be cited to appear at that time, whenever the
appeal is taken by entering it in the clerk's office. In the case
before us, the appeal was filed in the clerk's office November 5,
1846. The next succeeding term of this Court commenced on 7
December in the same year. But there was no citation to the adverse
party to appear at that time, and consequently the case was not
removed to this Court upon that appeal. The citation which issued
on 27 August, 1847, would not bring up an appeal returnable to
December term, 1846.
It is true that although this appeal was not prosecuted, yet the
district attorney might have taken another appeal at any
Page 47 U. S. 113
time within a year from the date of the decree, and brought it
up by a citation returnable to the December term, 1847. The right
of a party to take a second appeal where the first had not been
legally prosecuted was decided in the case of
Yeaton v.
Lenox, 8 Pet. 123. In that case, the first appeal
was dismissed by the Court for the want of a proper citation. And
the appellant, before the expiration of the time limited by law for
appealing, entered a second appeal in the circuit court, and cited
the adverse party to appear at the term of this Court next
following the second appeal, and the second appeal was held good.
If, therefore, the order of February 13, 1847, could, as contended
for in the argument, be regarded as a second appeal, the case would
be regularly before the Court upon the citation issued in the
August following. But after very carefully considering that order,
the Court thinks that no just construction of its language will
authorize us to regard it as a second appeal. It was evidently
nothing more than a motion to extend the time for returning the
appeal previously taken, and the Court directs that its former
order be so amended as to make the citation returnable to the next
term of this Court. The citation which afterwards issued in August,
1847, calls this order an appeal, and speaks of it as an appeal
granted on the day it bears date. But this description in the
citation cannot change the meaning of the language used in the
order. It appears, like the preceding ones, to have been made under
the impression that the district court had the power to regulate
the time and manner of bringing up the appeal.
It has been said that this objection is a mere technicality, and
may be regarded rather as a matter of form than of substance. But
this Court does not feel itself authorized to treat the directions
of an act of Congress as it might treat a technical difficulty
growing out of ancient rules of the common law. The power to hear
and determine a case like this is conferred upon the Court by acts
of Congress, and the same authority which gives the jurisdiction
has pointed out the manner in which the case shall be brought
before us, and we have no power to dispense with any of these
provisions, nor to change or modify them. And if the mode
prescribed for removing cases by writ of error or appeal be too
strict and technical and likely to produce inconvenience or
injustice, it is for Congress to provide a remedy by altering the
existing laws, not for the Court. And as this appeal has not been
prosecuted in the manner directed, within the time limited by the
acts of Congress, it must be
Dismissed for want of jurisdiction.
MR. JUSTICE WOODBURY dissented.
Page 47 U. S. 114
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Louisiana, and was argued by counsel. On consideration whereof and
it appearing to the Court that this appeal has not been prosecuted
in the manner directed and within the time limited by the acts of
Congress, it is therefore now here ordered and decreed by this
Court that this appeal be and the same is hereby dismissed.