1. Appeals from the district courts of California, under the act
of 3 March, 1851 -- which, while giving an appeal from them to this
Court, makes no provision concerning returns here, and none
concerning citations, and which does not impose any limitation of
time within which the appeal may be allowed -- are subject to the
general regulations of the Judiciary Acts of 1789 and 1803, as
construed by this Court.
Hence the allowance of the appeal, together with a copy of the
record and the citation, when a citation is required, must be
returned to the next term of this Court after the appeal is
allowed.
Page 70 U. S. 47
2. An appeal allowed or writ of error issued must be prosecuted
to the nest succeeding term; otherwise it will become void.
3. The mere presence of the district attorney of the United
States in court at the time of the allowance of an appeal, at
another term than that of the decision appealed from and without
notice of the motion or prayer for allowance, will not dispense
with citation.
The Judiciary Act of 1789 allows examination by this Court of
final judgments and decrees given in the circuits [
Footnote 1]
"upon a writ of error, whereto shall be annexed and returned
therewith,
at the day and place therein mentioned, an
authenticated transcript of the record, an assignment of errors,
and prayer for reversal, with a citation to the adverse party,"
such party having a notice prescribed in the act. A subsequent
act of 1803, [
Footnote 2] which
gives an appeal from decrees in chancery, subjects it to the rules
and regulations which govern writs of error. But nothing is said
specifically in either act as to
when the writ of error,
the citation, or the record is to be returned to this Court.
An Act of March 3, 1851, [
Footnote 3] to ascertain and settle private land claims in
the State of California authorizes, by its tenth section, the
district courts there to hear cases of a certain kind, and declares
that after judgment, they
"shall, on application of the party against whom judgment is
rendered, grant an appeal to the Supreme Court of the United States
on such security for costs in the district and supreme court as the
said court shall prescribe,"
But says nothing more on this subject.
Under this act of 1851, the District Court for the Northern
District of California rendered a decree on the 23d of November,
1859, in a case between Castro, claimant, and the United States. On
the 24th of January, 1860, an appeal was granted on motion by the
United States. This appeal seems to have been dismissed, and on the
11th of November, 1864, an appeal was allowed, on the motion of the
claimant, the then
district attorney of the United States
being
Page 70 U. S. 48
present in court. No citation was issued upon this
appeal returnable to the next term of this Court, nor was the
record filed and the cause docketed during that term. On the 29th
of May, 1865, however, a citation was issued, returnable at this
term, and service of this citation was acknowledged by the present
district attorney, and the writ was returned and the record filed
at this term under an agreement between the district attorney and
the attorney for the claimants to submit the cause upon printed
briefs. This arrangement was subject to the approval of the
attorney general, who withheld his approval.
He now moved to dismiss the appeal.
Page 70 U. S. 49
THE CHIEF JUSTICE delivered the opinion of the Court:
We have no jurisdiction of this appeal unless it has been
allowed by some act of Congress and has been brought in substantial
conformity with the legislative directions. The appellate
jurisdiction of this Court is indeed derived from the Constitution,
but by the express terms of the constitutional grant it is
subjected to such exceptions and to such regulations as Congress
may make.
In the Judiciary Act of 1789 and in many acts since, Congress
has provided for its exercise in such cases and classes of cases,
and under such regulations as seemed to the legislative wisdom
convenient and appropriate. The Court has always regarded appeals
in other cases as excepted from the grant of appellate power, and
has always felt itself bound to give effect to the regulations by
which Congress has prescribed the manner of its exercise. We here
use the word "appeals" in its largest sense, comprehending writs of
error and every other form in which appellate jurisdiction may be
invoked or brought into action.
The acts of Congress providing for and regulating appeals have
been often under the consideration of this Court, and it may now be
regarded as settled that in the cases where appeals are allowed by
the Judiciary Act of 1789 and the additional act of 1803, the writ
of error, or the allowance of
Page 70 U. S. 50
appeal, together with a copy of the record and the citation,
when a citation is required, must be returned to the next term of
this Court after the writ is sued out or the appeal allowed;
otherwise the writ of error or the appeal, as the case may be, will
become void and the party desiring to invoke the appellate
jurisdiction will be obliged to resort to a new writ or a new
appeal. [
Footnote 4]
In the case now before us, the rule just noticed was not
followed. The appeal was allowed on the 11th November, 1864, and
the allowance, with a citation to the adverse party, duly served,
and a copy of the record, should have been sent here at the next
term. This was not done, and the appeal therefore became void. The
citation subsequently issued was consequently without avail, for
there was no subsisting appeal.
The fact that the district attorney was present in court cannot
change this conclusion. We are not prepared to admit that the more
presence of counsel in court at the time of the allowance of an
appeal, at another term than that of the decision appealed from and
without notice of the motion or prayer for allowance, would
dispense with the necessity for a citation. Certainly it would have
no greater effect, and in the case before us a citation, even if
issued and served contemporaneously with the allowance of the
appeal, would have availed nothing because of the omission to make
the required return to the next term.
If this appeal, therefore, is to be disposed of under the acts
of 1789 and 1803 as interpreted by this tribunal, it must be
dismissed.
But it does not come before us under those acts.
It was allowed under the tenth section of the Act of March 3,
1851, to ascertain and settle private land claims in the state of
California, which authorizes the allowance of appeals
Page 70 U. S. 51
on application to the district court, and giving security, if
required, for prosecution.
This act makes no provision concerning returns to this Court,
and none concerning citations; nor does it impose any limitation of
time within which appeals may be allowed.
But we cannot suppose that Congress intended no regulation of
these appeals in these important respects. It had already
prescribed regulations for the most usual invocation of appellate
jurisdiction, and when it provided for appeals in these land cases
from the District Court for California, it had, doubtless, these
regulations in view. We think, therefore, that the appeals
authorized by this section must be regarded as appeals subject to
the general regulations of the acts of 1789 and 1803. If we held
otherwise, we should be obliged to sanction appeals taken at any
term and brought here at any time after final decision, or to
confine the right of appeal to the term of the district court in
which the decision complained of was made. We cannot ascribe to
Congress either intention.
The appeal before us therefore must be considered as having been
made subject to those regulations, and must be dismissed for want
of conformity to them by the appellant.
Motion granted.
[
Footnote 1]
Act of September 24, 1789, ch. 20, § 22; 1 Stat. at Large
84.
[
Footnote 2]
Act of March 3, 1803, ch. 40, § 2, 2
id. 244.
[
Footnote 3]
Ch. 41; 9
id. 633.
[
Footnote 4]
United States v.
Hodge, 3 How. 534;
United
States v. Villabolos, 6 How. 90;
United
States v. Curry, 6 How. 112;
Steamer
Virginia v. West, 19 How. 182;
Insurance Co. v.
Mordecai, 21 How. 200;
Mesa v.
United States, 2 Black 721.
