United States v. Estudillo,
68 U.S. 710 (1863)

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U.S. Supreme Court

United States v. Estudillo, 68 U.S. 1 Wall. 710 710 (1863)

United States v. Estudillo

68 U.S. (1 Wall.) 710


1. An appeal of a case originating below under the statute of June 14, 1860, relating to surveys of Mexican grants in California, and in which the appellants appear on the record as The United States, simply (no intervenors being named), remains within the control of the attorney general, and a dismissal of the case under the 29th rule of this Court is not subject to be vacated on the application of parties whose names do not actually appear in the record as having an interest in the case, even although it is obvious that below there were some private owner

Page 68 U. S. 711

contesting the case under cover of the government name, and that some such were represented by the same counsel who now profess to represent them here. SWAYNE and DAVIS, JJ., dissenting. TANEY, C.J., and GRIER, J., absent.

2. Where parties are permitted by the district court under this act to appear and contest the survey and location, the order of the court permitting such appearance and contest should be set forth in the record. Only those persons who by such order the made parties contestant will be heard on appeal. MILLER, SWAYNE, and DAVIS, JJ., dissenting. TANEY, C.J., and GRIER, J., absent.

3. Where, under this act, notice has been given to all parties having or claiming to have any interest in the survey and location of the claim, to appear by a day designated, and intervene for the protection of their interest, and upon the day designated certain parties appeared, and the default of all other parties was entered; the opening of such default with respect to any party subsequently applying for leave to appear and intervene, is a matter resting in the discretion of the district court, and its action on the subject is not open to revision on appeal.

An Act of Congress of June 14, 1860, * authorizes the district courts of California, on the application of any party interested, to make an order requiring the survey of any private land claims to be returned into court. The order is to be granted on the application of "any party" whom the court

"shall deem to have such an interest in the survey and location . . . as to make it just and proper that he should be allowed to take testimony, and to intervene for his interest therein."

If the objection to the survey and location is made on the part of the United States, the order to return the survey into court is to be on the motion of the district attorney, founded on sufficient affidavits.

"And if the application for such order is made by other parties claiming to be interested in, or that their rights are affected by such survey and location, the court, or the judge, in vacation, shall proceed summarily, on affidavits or otherwise, to inquire into the fact of such interest, and shall, in its discretion, determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order. "

Page 68 U. S. 712

But the act provides also

"that all the parties claiming interest &c., derived from the United States, shall not be permitted to intervene separately, but the rights and interests of said parties shall be represented by the District Attorney of the United States, intervening in the name of the United States, aided by counsel acting for said parties jointly, if they think proper to employ such counsel."

The act also provides that before proceeding to determine the validity of any objection to the location made by the surveyor general, notice by newspaper publication shall be given to all parties in interest, that objection has been made, and admonishing them to intervene for the protection of their interest.

The present case -- another case (United States v. Nunez) being just like it and depending upon it -- was one of these surveys and locations which had been certified into the District Court for the Northern District of California. The record -- a confused sort of document -- showed that on the 3d of October, 1860, "the United States Attorney, E. W. Sloan, and J. B. Williams appeared for the United States," other counsel for the claimant, Estudillo, and R. Simson for a certain Castro,

"and on motion, it was ordered that he be allowed five days to make showing of his right to intervene herein, and no other party appearing, whereupon it is ordered that the default of all parties not appearing as aforesaid be and the same is hereby entered."

Subsequently, to-wit, October 31, 1860, "come the United States by their attorney, and except to the official survey." Subsequently to this "the petition of Thomas W. Mulford, by his attorneys, E. W. Sloan and J. B. Williams," set forth that he had an interest in the land claimed, and prayed the court to open the default entered on the preceding 3d, which motion the court, on the 20th of February, 1861, "denied." The case being here by appeal, as the United States, appellant, and J. J. Estudillo, appellee, Mr. Bates, A.G., in behalf of the United States, and Mr. Laitham for J. B. Estudillo, appellee, signed an agreement at the last vacation that the appeal should be dismissed; and the case was dismissed by the clerk accordingly, this agreement and dismissal purporting to be made under the

Page 68 U. S. 713

29th rule of this Court, which provides that when the appellant and appellee in any appeal may, in vacation, by their respective attorneys, who are entered as such upon the record, sign and file with the clerk an agreement in writing, directing the case to be dismissed, it shall be the duty of the clerk to enter the case dismissed.

Page 68 U. S. 715

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