The 12th section of the Act of 31 August, 1852, providing for an
appeal from the Board of Land Commissioners in California to the
district court, directs that notice of an intention to appeal shall
be filed within six months, and on failure to file such notice, the
appeal shall be regarded as dismissed.
This language is mandatory on the court, and admits of no
discretion. In case of such failure, the appeal must be
dismissed.
This case distinguished from those in which a court can relax
its own rules.
The facts of the case are stated in the opinion of the
Court.
Page 63 U. S. 291
MR. JUSTICE McLEAN delivered the opinion of the Court.
This is an appeal from the District Court of the United States
for the Northern District of California. A grant of twenty leagues
square of land, equal to four hundred square leagues, was made by
the supreme government of Mexico to President Yturbide, to be
located in Texas, on 25th February, 1822, "in recompense for his
high merit, in having achieved the independence of his
country."
In 1835, the Congress of Mexico authorized his heirs to locate
the land in New Mexico, or in Upper or Lower California. On the
20th of February, 1841, it was decreed by the President that the
land should be located in Upper California; and on the 5th of June,
orders were given by the President to the Governor of California to
assign the land selected by Salvador de Yturbide, one of the heirs,
in fulfillment of the grant, and the order was duly received by Pio
Pico; but
Page 63 U. S. 292
when Salvador was near Mazatlan, en route for California, to
locate and take possession of the land, he found that port in
rebellion, and was obliged to return to Mexico.
The claimants took no further proceedings till after the close
of the war with the United States, and Congress had passed laws to
carry into effect the treaty stipulations. They proceeded then to
locate the claim on the tract described on the map, and presented
their petition to the board of commissioners, asking for the
confirmation of the grant. The board rejected the claim, on the
ground that it had not been located prior to the change of
government.
An appeal was taken to the district court, under the act of
1852; but the counsel of appellants, being detained from home by
sickness, did not file the notice, directed by the act to be given
within six months. Before any motion was made to dismiss the cause,
they moved the court for leave to file the notice,
nunc pro
tunc, and proved, to the satisfaction of the court, that the
omission to file the notice was wholly accidental; and the court
thereupon allowed the motion, and ordered the notice to be filed
nunc pro tunc. But, on the hearing of the cause, the court
decided that, under the statute of 1852, a failure to file the
notice within six months precluded any further prosecution of an
appeal, under any circumstances whatever, and therefore dismissed
the appeal.
The district court, it is said, dismissed the appeal on the
ground that its own order allowing the notice of appeal to be filed
nunc pro tunc was void.
As the above statement is clear and concise, it was copied from
the plaintiff's brief.
The counsel insists that the allowance of the appeal after the
time limited was not void; that the language of the statute that
"the appeal shall be considered as dismissed, in case the notice
shall not be filed as required," is directory merely.
It must be admitted that as to the matter of filing papers and
the entry of rules under the practice of the court, such
modifications may be made as may facilitate the progress of the
court and the convenience of parties, and indeed the court may,
under peculiar circumstances, avoid an act of injustice
Page 63 U. S. 293
by the suspension of its rules; but this can only be done where
the discretion of the court may fairly be exercised.
Where an entry is required by statute on a condition expressed,
the court is bound by the statute. The language of the act that
"the appeal shall be considered as dismissed" where the notice is
not filed as required would seem to admit of no doubt. "If the
appeal shall be considered as dismissed" for want of notice, how
can the court say it shall not be so considered?
If there be no saving in a statute, the court cannot add one on
equitable grounds. The 12th section of the Act of 31 August, 1852,
provides that in every case in which the board of commissioners
shall render a final decision, it shall be their duty to have two
certified transcripts of their proceedings and decisions and of the
papers and evidence on which the same were founded, made out, one
of which transcripts shall be filed with the clerk, shall
ipso
facto operate as an appeal for the party against whom the
decision shall be rendered, and if such decision shall be against
the private claimant, it shall be his duty to file a notice with
the clerk of the court, within six months thereafter, of his
intention to prosecute the appeal; and if the decision shall be
against the United States, it shall be the duty of the Attorney
General of the United States, within six months after receiving the
said transcript, to cause to be filed with the clerk aforesaid a
notice that the appeal will be prosecuted by the United States, and
on the failure of either party to file such notice with the clerk,
the appeal shall be regarded as dismissed.
This seems to be mandatory on the court, and authorizes the
exercise of no discretion.