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
MR. JUSTICE McLEAN delivered the opinion of the Court.
A final decree was entered in this case at the last term, and a
mandate was issued to the district court directing such further
proceedings 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.
This Court reversed the decision of the district court and
ordered, adjudged, and decreed, 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.
The mandate was filed in the district court, and the counsel of
Fremont moved the court for an order in pursuance of said mandate
in the form of the decree in that behalf elsewhere in the record of
the case appearing, excepting the following words: "the said land
to be surveyed in the form and divisions prescribed by law, for
surveys in California, and in one entire tract," which motion was
opposed by the district attorney of the United States. The district
court entered the decree upon its record, refusing to omit the
words, moved by the appellee, and to this refusal his counsel
excepted.
No further proceedings were had, as appears from the record, and
at a subsequent day of the district court the attorney of the
United States applied for an appeal in open court in behalf of the
United States from the final decision of that court at the above
term, which was granted.
The appeal was allowed the 23d of July, 1855, more than three
months before the commencement of the present term of this Court,
and no record of the case having been filed within six days, after
the commencement of the term, as the rule requires, a record of the
case being filed by the appellee, a motion is made to dismiss the
appeal on the ground that there was no action of the district court
on which an appeal could be taken. And also on the ground that the
appellants have failed to file the record within the rule.
It was the duty of the appellants to file the record and docket
the cause within the first six days of the present term, the decree
appealed from having been entered sixty days before the
commencement of the present term. With the exception of California,
Oregon, Washington, New Mexico, and Utah, appeals or writs of error
allowed are required to be docketed within the
Page 59 U. S. 37
first six days of the term, if entered or allowed, thirty days
before its commencement.
The appellants having failed to file the record, it was filed by
the appellee, which entitles him, under the rule, to have the cause
dismissed.
But the counsel for the appellee insist that the appeal should
be dismissed on the ground that it was taken with the intent to
bring before this Court a review of its decree entered at the last
term. As there was no action by the district court except the entry
of the mandate upon its records, the appeal brings before us only
that which was transmitted to the district court by the mandate.
This is an irregular procedure, and it must have been entered
without a particular examination by the court.
The appeal is dismissed, and the clerk is directed,
forthwith, to certify this decision to the district court.
MR. JUSTICE CATRON.
I agree that by the 19th, 30th, 43d, and 63d rules governing the
practice of this Court, the record presented was not filed in time,
and that therefore the appeal must be dismissed for want of
prosecution. But I do not concur that, on the present motion to
dismiss, we ought to decide the question whether the district court
could or could not allow the appeal on the decree made there on the
ground that the decree did not conform to the mandate of this
Court.
The motion to dismiss for want of prosecution and the motion to
dismiss for want of jurisdiction to entertain the appeal are
different and distinct in their character; the one only dismisses
the appeal and allows a second; and the other bars it.
The practice has been, when the record was not filed in time,
for the defendant in error or appellee to produce a certificate
from the clerk or a copy of the record duly certified, showing that
the writ of error or appeal had been taken and that it operated as
a supersedeas when the cause was docketed and dismissed. But when a
motion was made to dismiss the cause for want of jurisdiction in
this Court to entertain the writ of error or appeal, or in other
words want of authority in the court below to allow it, which is
the question here, then the record was ordered to be printed,
briefs filed, and the question discussed in the usual way. Nor has
it ever occurred in my experience in this Court to set down a cause
to be heard at the same time on both motions. The consequence must
be in such a proceeding that if the plaintiff in error is turned
out of court for his neglect in not filing the record in time, he
has no power to move for a certiorari to amend the record, filed by
the other
Page 59 U. S. 38
side, and then this Court bars a second appeal by further
adjudging that no jurisdiction existed in the inferior court to
allow it. And such is the judgment in this case.
Some of the most stringent controversies that have come before
us have arisen on motions to dismiss for want of jurisdiction, and
especially in causes brought here from state courts under the 25th
section of the Judiciary Act.
The idea in such cases that a state court decision should in
effect be affirmed, and the plaintiff in error barred by dismissing
case for want of jurisdiction on the presentment of a manuscript
record, without furnishing the court with even a brief as was done
here is not only contrary to our established practice but is
calculated to do great mischief to suitors.
In the instance before us, I never saw the papers until after I
heard the opinion of the majority of the Court read. I deemed it
unimportant, on the first question, to read the record, as it had
not been filed in time, nor was a valid excuse offered for the
delay. On the second question, I had then formed no opinion. In his
remarks, the Attorney-General referred us to a letter of the
District Attorney of the United States for the Northern District of
California, which was officially written to the Secretary of the
Interior, and presented to us, as part of the Attorney-General's
argument, setting forth the reasons why the appeal was prosecuted.
These reasons, in substance, are that this Court, in its opinion
delivered by THE CHIEF JUSTICE at the last term,
58 U. S. 17
How. 565, remanded the cause and directed the court below to enter
a decree conformably to that opinion; which opinion,
ibid.
58 U. S. 558,
declared:
"That if any other person within the limits where the quantity
granted to Alvarado should be located, had afterwards obtained a
grant by specific boundaries before Alvarado had made his survey,
the title of the latter grantee could not be impaired by any
subsequent survey for Alvarado, and that as between individual
claimants from the government, the title of the party who had
obtained a grant for the specific land would be the superior and
better one."
And it is insisted in this argument that the district court
should have inserted in its decree the foregoing conclusions and
have protected individual titles and rights in the region of
country where Colonel Fremont's claim might be located, ordering
that such lands should be excluded from the survey as Fremont's
land although they were embraced within its outboundaries. And
secondly that in the opinion of this Court, the district court was
directed to cause the grant to Alvarado to be surveyed, "in the
form and divisions prescribed by law for surveys in California."
But that it had made no decree as to the form of the survey, and
disregarded the instruction, leaving
Page 59 U. S. 39
it to the surveyor to ascertain the law and to locate the land
according to the law of California, whether it was Mexican or
United States law, whereas it is insisted that the true
construction of the grant to Alvarado as to the manner in which it
shall be surveyed was a judicial question, and that, as the
concession was for the purposes of cultivation and pasturage, a
survey should be made of lands suited to these purposes, and that
the district court ought so to have adjudged and decreed, and to
have excluded a survey of barren mountains, including improved gold
mines, contrary to the plain intention of the parties to the grant
as originally made.
The questions presented were supposed to be of grave importance
and much difficulty, and therefore no imputation of unfair and
oppressive conduct should be cast on the officer of the government
who prayed this appeal under the express sanction of the district
court.
It is manifest that Fremont, the appellee, believed he might
appeal if he saw proper to do so. He took a bill of exceptions, and
had it signed by the court, to its ruling, that his claim should be
surveyed in one tract. As no bill of exceptions lies in cases of
this description, an appeal could have been prosecuted on the
affirmative fact that too much had been inserted in the decree,
contrary to the mandate of this Court; so, on the other hand, if
not enough was put into the decree to execute the mandate, an
appeal would equally lie. As a general rule this is undoubted. It
is plainly apparent that both parties and the court believed that
an appeal would lie.
I hold it to be true, however, that the appeal should not have
been allowed. By the treaty of peace with Mexico, the legal title
to the public lands in California was vested in the United States,
onerated with private claims to parts thereof. Alvarado's claim was
presented as one of this character, and being brought before this
Court, was pronounced to be a good and subsisting claim and
furthermore that all the conditions it contained were subsequent
conditions, which, by the treaty, ceased to have any binding force,
and therefore they were struck from the grant as being no necessary
part thereof. It was also held that the claim in this condition was
assignable, and properly assigned to Colonel Fremont; and as there
was no grant to any specific tract of land, that Colonel Fremont
held a common interest in the public lands generally, lying within
a large section of country described in the grant.
This decision reduced the claim to the condition of a mere
floating land warrant that could not be located by judicial
authority, more than an ordinary floating warrant can be located by
the decree of a court, and therefore, when seeking location,
Page 59 U. S. 40
it must of necessity, address itself to the executive or
legislative power.
The district court, having entered the decree as directed, had
no jurisdiction to take any further step in the cause. It follows
that the executive department must determine for itself whether any
law exists authorizing that branch of the government to ascertain
and survey the land and issue a patent for it by which the title of
the United States will be devested and transferred to the
grantee.
Order
This cause came on to be heard on the transcript of the record
from the district Court of the United States for the Northern
District of California, filed by the appellee, John C. Fremont,
and, on the motion of Messrs. Crittenden and Bibb, of counsel for
the appellee, to docket and dismiss this appeal, pursuant to the
63d rule of this Court, and was argued by counsel, as well against
as in support of the said motion. On consideration whereof, it
appearing to this Court that the appellants have altogether failed
to prosecute their appeal pursuant to the rules of this Court. And,
also, as the mandate only was entered on the records of the
district court, no action being had thereon, that there was no
ground for an appeal in this cause from the said district court, it
is thereupon now here ordered, adjudged, and decreed by this Court
that this appeal be and the same is hereby docketed and dismissed,
and that this cause be and the same is hereby remanded to the said
district court, with directions to proceed therein according to law
and in conformity to this decision. And it is further ordered by
this Court here that the clerk do forthwith issue a writ of
procedendo in this cause to the said district court.
