As the act of Congress passed on the 3d of March, 1851, does not
specify the time within which an appeal must be made to this Court
from the District Courts of California, the subject must be
regulated by the general law respecting writs of error and appeals.
Either party is at liberty, therefore, to appeal from such a decree
within five years from the time of its rendition.
Under the sixty-third rule of this Court, an appellee in a case
from California may docket and dismiss according to that rule; but
a new appeal may be taken at any time within five years, or it may
be that the record may be filed by the appellant at the same term
at which a certificate or record had been filed by the appellee,
and the case dismissed.
After a case has been thus docketed and dismissed at the
instance of an appellee who is a claimant of land, if a patent
should be taken out, it will still be subject to be reviewed by
this Court at any time within the five years above mentioned.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
Page 61 U. S. 262
A motion has been made to docket and dismiss this case.
It appears, by a certified copy of the record in the District
Court of the United States for the Northern District of California,
that a decree was passed by that court on the 22d of September,
1856, confirming the title of Pacheco to certain lands therein
mentioned. No appeal was taken by the United States at the term at
which the decree was made, but an appeal was entered at the next
succeeding term, in March, 1857.
Pacheco by his counsel now moves to docket and dismiss the case,
upon two grounds, 1st., because the appeal was not taken at the
term at which the decree was rendered, and 2d., if the appeal might
legally be taken at the succeeding term, yet no transcript of the
record was filed here within the first six days of the present term
of this Court.
The first question raised by the motion depends upon the
construction of the Act of Congress of March 3, 1851, which
authorizes an appeal to this Court in cases of this description.
The act gives the right in general terms to the party against whom
the judgment is rendered, and does not limit the time within which
the appeal shall be made, nor refer to any particular act of
Congress by which the time shall be regulated. It must therefore be
governed by the Judiciary Acts of 1789 and 1803, which regulate
writs of error and appeals to this Court from inferior tribunals.
And by these acts the party may take his appeal at any time within
five years after the passing of the decree by the inferior court.
The appeal in question was therefore made in time, and this motion
cannot be maintained on that ground.
Page 61 U. S. 263
The second reason assigned in support of the motion depends upon
the sixty-third rule of this Court. Under this rule, the appellee
in a case from California is entitled to have the case docketed and
dismissed if the transcript of the record is not filed in this
Court within the first six days of the term next ensuing such
appeal, provided the decree of the court below was rendered sixty
days before the commencement of the said term of this Court.
As we have already said, the decree was rendered in September,
1856, and the appeal taken in March, 1857. Consequently it was the
duty of the appellant in this case to file a transcript of the
record within the first six days of the present term. This was not
done. And it appears that no transcript of the record has yet been
filed by the appellant. The appellee is therefore entitled to have
the case docketed and dismissed under the rules above
mentioned.
It is true he has not filed the certificate mentioned in the
rule, but has filed a full transcript of the record. But the
transcript shows all of the facts which the clerk by the rule is
required to certify, and it has always been held by the court to be
equivalent to the certificate which the rule prescribes.
It is proper, however, to add in order to prevent mistake on
this subject, that the only effect of docketing and dismissing a
case under this rule, is to enable the party to proceed to execute
his judgment in the court below. It removes the bar to further
proceedings in that court, which the appeal created, and does
nothing more. And after the case has been docketed and dismissed,
the party against whom the decree was rendered may still, at any
time within five years from the date of the decree take a new
appeal in the inferior court; and if he files the transcript of the
record in this Court within the first six days of the term next
ensuing his appeal, the appeal will be valid and the case as fully
before this Court for examination and revision, as if it had been
brought here at the first term. The act of Congress authorizes the
appeal at any time within five years, and the period allowed by law
cannot be shortened by any rule or practice of a court. Nor was it
intended to be diminished by the rules in question. And when an
appeal is taken in the court below, if the appellee desire a speedy
and final decision or the controversy, it is in his power to bring
the case up to the next succeeding term of this Court.
Indeed, it sometimes happens under this rule that the Court
permits the transcript of the record to be filed by the appellant,
and the case docketed for argument, at the same term at which it
had previously been docketed and dismissed on the motion of the
appellee. And where the appellant satisfies the
Page 61 U. S. 264
Court that the omission to file the transcript within the first
six days was not owing to any fault or negligence on his part, the
Court has always allowed him to file it at the same term, and
docket the appeal for trial, without putting him to the expense and
delay of another appeal.
It follows from what we have said that although the case before
us must be docketed and dismissed, yet this will not prevent the
United States from filing a transcript at the present term and
docketing the case for argument, if they can show that the delay
has not arisen from any fault or negligence on their part. And if
they fail to do so, they may yet take another appeal at any time
within five years and bring here the decree of the district court
for examination and revision. And if the appellee, after the case
is docketed and dismissed, proceeds upon the decree of the district
court and obtains a patent for the land, his title will still be
subject to the decision of this Court if the government shall
hereafter bring up the case within the time limited by law.
We have deemed it proper on this occasion to enter into this
full explanation of the rule of court referred to on account of the
multitude of appeals which must unavoidably come up from the
district courts of California and which, in some shape or other,
may be brought before this Court upon motions to dismiss.