1. The Court refused to dismiss an appeal by the United States
from the Territory of New Mexico, though, contrary to the usually
obligatory rule of practice, a transcript of the record had not
been made in this Court until about two years after the end of the
next term after the
Page 77 U. S. 424
allowance of the appeal, it appearing, in excuse for the delay,
that an appeal had been properly prayed for in open court at the
time that the judgment was rendered, and was then granted, but that
the clerk, for some unexplained reason, had neglected to make an
entry in his minutes of what was thus done; that the district
attorney, on whose application the appeal was granted, not long
after retired from office; that so soon as the omission of the
clerk was brought to the notice of a new district attorney of the
United States, succeeding, he made application to the court to
amend the records so that it might appear in accordance with the
facts that the appeal had been prayed for at the term in which the
judgment was rendered, that the court granted the application and
ordered an entry to be made
nunc pro tunc of an appeal
asked for at the term when the judgment was given, and that it be
granted.
2. The Court adverts to the fact that the government is obliged
to trust the conduct of cases in remote parts of the country to
subordinate agents, and that where the distance of the seat of
government is so great from them as it was here, the difficulty of
communication should be taken into view when considering the
question of delay.
The suit was brought by Vigil and others to recover a parcel of
land in that territory under a special act of Congress passed 21
June, 1860, which gave the right of appeal to either party if asked
for within one year from the rendition of the judgment. A judgment
was rendered against the United States in the court below
at
the January Term, 1867, from which an appeal was sought to be
taken. The only question was as to its regularity. It was
maintained on the part of the government that the appeal was prayed
for by the district attorney of the United States in court at the
time already mentioned, when the judgment was rendered, and was
granted, but that the clerk for some unexplained reason neglected
to make an entry in the minutes of what was thus done.
This omission of the clerk did not appear to have been
discovered by the district attorney
till January Term,
1869. In the meantime, this officer in the territory had
retired from the office, and when the omission was brought to his
notice by his successor, he expressed his surprise and stated that
he not only prayed for the appeal but charged the clerk
Page 77 U. S. 425
to make the entry, and, as he believed, gave him a memorandum to
that effect. As soon as the omission came to the knowledge of his
successor, he made an application to the court below to amend the
record so that it might appear that the appeal had been prayed for,
according to the facts, at the term in which the judgment was
rendered.
The court granted the application and ordered that an entry be
made, nunc pro tunc, of an appeal in the cause, asked for at the
January Term, 1867, and that the same be granted. But, of course,
no transcript of the record was returned and filed in this court
before the end of the next term after the allowance of the appeal
regarding it as of
that date.
MR. JUSTICE NELSON delivered the opinion of the Court.
The action of the court below granting the application made to
it by the new district attorney and ordering that an entry be made
nunc pro tunc of an appeal in the cause, asked for at the
January Term, 1867, and that the same be granted, completed the
appeal, and we think it was well sustained by the proofs before the
Court.
The practice relied on for the present motion for dismissal may
be admitted, [
Footnote 1] but
there are exceptions to the
Page 77 U. S. 426
rule.
United States v. Gomez [
Footnote 2] is an instance. There, the proceedings on
the appeal had been suspended for the purpose of a motion in the
court below to set it aside, and the clerk also had refused to
return and file the transcript. These facts were regarded as a
sufficient excuse for the delay in filing the record in this Court
at a subsequent term.
United States v. Booth [
Footnote 3] had already established an
exception. That was the case of a writ of error and the clerk had
refused to return or file the transcript, which occasioned the
delay.
The same principle was adopted in the case of
Alviso v.
United States. [
Footnote
4] The case had been dismissed at the December Term, 1866, for
want of a citation. A motion was made at the succeeding term to
reinstate it upon the docket on the production of proof that a
citation had been signed by the judge and served on the United
States district attorney in due time. Objection was taken that the
proof came too late, as, according to the settled practice of the
court, the motion to reinstate must be made at the same term at
which the motion to dismiss was granted. But it appearing from the
proofs that the clerk's office, where the records were kept, had
been partially destroyed by fire in July, 1866, which occasioned
great confusion and some loss of the papers, the Court regarded the
facts as affording a sufficient excuse for the delay.
Now in the case before us, the fault of the clerk in not
entering the prayer for the appeal has mainly occasioned the delay
in perfecting it. It is true the vigilance of the United States
district attorney might have corrected the error, but unfortunately
he labored under the conviction that the appeal had been prayed for
and allowed at the time the judgment was rendered, and that nothing
was left to be done but the return and filing of the transcript by
the clerk, and was not undeceived till his attention was called to
the case by his successor.
This neglect of duty by the clerk and inattention of the
Page 77 U. S. 427
district attorney led to the necessity of a motion to the court
to amend the record so as to make it appear thereon that the proper
steps had been taken in due time to secure an appeal on the part of
the government. The prayer for an appeal in due time, although not
granted then by the court, secures this right, and no delay by the
court in its allowance can impair it. The order
nunc pro
tunc contains the allowance. It is true some considerable
delay has taken place in perfecting this appeal, but the Court is
of opinion that it has been sufficiently accounted for from the
facts and circumstances appearing on the face of the record. The
government is obliged to trust the conduct of cases in remote parts
of the country to subordinate agents, and the distance in the
present instance is so great from the seat of government that a
very considerable lapse of time is required to communicate with the
head of the department. In such cases, some indulgence must be
extended to the officers thus engaged, and this difficulty of
communication should be taken into consideration in determining the
question of delay in conducting the legal proceedings of the
government.
The want of a citation was mentioned on the argument as another
ground of dismissal, but the answer is the appeal was taken in open
court at the term in which the judgment was rendered. In such
cases, no citation is necessary.
Motion denied.
[
Footnote 1]
Castro v. United
States, 3 Wall, 46;
Edmonson
v. Bloomshire, 7 Wall. 306.
[
Footnote 2]
70 U. S. 3
Wall. 762.
[
Footnote 3]
62 U. S. 21
How. 512.
[
Footnote 4]
73 U. S. 6 Wall.
457.
