UNITED STATES SUPREME COURT DECISIONS ON-LINE

When this Court is satisfied from the evidence before it, that no appeal to it had been granted by the court below, and that the cause was not before it when an order was passed at the instance of the appellee to docket and dismiss the case, it will rescind and annul the decree of dismissal and revoke and cancel the mandate issued thereupon.

A motion to docket and dismiss a case from the failure of the appellant to file the record within the time required by the rule of this Court, when granted, is not an affirmance of the judgment of the court below. It remits the case to the court, to have proceedings to carry that judgment into effect, if in the condition of the case there is nothing to prevent it. That is for the consideration of the judge in the court below, with which this Court has nothing to do unless his denial of such a motion gives to the party concerned a right to the writ of mandamus.

In the present aspect of this case, such a motion is not to be considered. clubjuris

Page 64 U. S. 327

This case was docketed and dismissed at the preceding term of the Court, under the circumstances which will presently be briefly stated. The attention of the Court was now called to the case by the following motions, namely:

1. A motion by the Attorney General to vacate the order dismissing the cause and to recall the mandate.

2. A motion by Gomez for a mandamus to the district court to compel it to file the mandate and to permit the execution of the decree of the district court confirming the land claim.

3. A like motion by Gomez for a like writ to compel the said district court to dismiss proceedings before it on the part of the United States, which proceedings were an application to open the decree below and to grant a new trial. These two motions may be considered as one.

4. A motion for a mandamus to compel the Surveyor General of California to survey the land confirmed to Gomez by the decree of the district court.

The history of the case is so fully given in the opinion of the Court, that a very brief outline of it will be sufficient.

On the 9th of February, 1853, Gomez, by P. Ord, his attorney, filed his petition before the board of land commissioners praying the confirmation of his claim to a tract of land called Panoche Grande.

On the 26th of March, 1855, the board decided against the claimant. An appeal was had to the District Court for the Northern District of California, but upon representation made that the land claimed lay in the Southern District, the transcript was sent to that court.

The occurrences which took place there and the manner in which an appeal found its way to this Court from the decree of that court confirming the claim are narrated in the opinion of this Court.

On the 31st day of January, 1859, a transcript of the record was filed in this Court, and a motion made on the part of the claimant to docket and dismiss the cause, which motion was granted, and a mandate sent down to the court below. The mandate was,

"That this cause be, and the same is hereby,

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remanded to the said district court. You therefore are hereby commanded that such proceedings be had in the said cause as, according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding."

On the 4th of May, 1859, a motion was made in the district court for leave to file the mandate and for leave to proceed under the decree. This motion was resisted by the district attorney, Mr. J. R. Gitchell, on the ground that no appeal had ever been taken by the United States in this case. The records of the court were offered in evidence, and Judge Ogier decided that it was satisfactorily proven to him that no such appeal had ever been taken.

This was the posture of the case when the motions were made which are inserted in the previous part of this report.

The following is the affidavit which is referred to and directed to be published in the opinion of the court.

"In the United States District Court for the Southern District of California. Vicente P. Gomez ad. the United States:"

"Pacificus Ord, late attorney of the United States for the Southern District of California, being duly sworn, says that at the June term, 1857, of the District Court of the United States for the Southern District of California, held at Monterey, Isaac Hartman represented that he was a member of the law firm of Sloan & Hartman, authorized and retained as counsel for Vicente P. Gomez in the above entitled cause. That he had as counsel for the said claimant obtained an order from the District Court of the Northern District removing the case to the Southern District; and that he was ready and willing to present the same to the Court, as soon as the same could be heard. Affiant further says that shortly thereafter, the court being then in session, the said Hartman, acting as counsel for said claimant, presented the said case to the court by reading the petition for review, and the other papers and transcript in the case to the court, for the appellant. That after so doing, this affiant, acting for the United States, admitted in open court, that in his opinion the claim was a valid one and that, in accordance with the rulings of the court in previous cases,

Page 64 U. S. 329

the case should be confirmed. That thereupon the court ordered that the decision of the land commissioners should be reversed, and a decree of confirmation entered therein for claimant. Affiant further says that at the next term of the said district court, held in Los Angeles, in December, the said Hartman, as counsel in said case, presented to affiant a draft of the decree of confirmation of said claim. That upon reading the same, affiant objected to the said draft on the ground that the same would cover all the land embraced within the limits of the named boundaries, to the extent of eleven leagues. Whereupon the said Hartman made another draft of a decree, restricting the quantity of land to not more than four leagues, which said draft, after being approved by affiant as United States attorney, was signed by the court. That thereafter affiant drafted an order of appeal to the Supreme Court of the United States in said case, on the part of the United States, and on the last day of the term of said court, Col. Kewen, acting for the United States, at the request of affiant, district attorney as aforesaid, asked for and obtained, as affiant was afterwards informed, the said order in said case. Affiant further says that at or about the time the said Hartman informed him that he had been retained by the said claimant in said case, affiant informed said Hartman that he had been the attorney for said Gomez before the United States land commissioners and that, for his services therein, the said Gomez had conveyed to him the one undivided half of the tract of land claimed therein. That he had endeavored for a long time to get the Attorney General to appoint some attorney to represent the United States in cases in which he was interested, but without success. That this case had been unacted upon for a long time, and that as the commissioners had, upon the evidence before them, passed favorably upon the validity of the claim, and though they rejected it, it was only on the ground of want of occupation by the grantee, and that as that ground had been overruled by the Supreme Court, there could be no injury to the United States, and no impropriety on his part, as United States attorney, in appearing and consenting to its confirmation, in all of which views of this affiant the said

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Hartman then concurred. Affiant further says that he wrote to the Attorney General of the United States shortly after assuming the duties of the office of district attorney, about December, 1854, stating that he had been employed as counsel, and was interested in several claims then pending on appeal in his district from the land commissioners, and requested that he would cause some attorney to be specially named to represent the United States in such cases. But the Attorney General never made or named any person to act in the matter, as requested. That affiant, being thus left to act in the matter as best he might, did act with the most scrupulous good faith, and to the best of his ability, for the United States, in all such cases. Affiant further says that he has been informed and believes that the parties who are now and have been endeavoring to impede and defeat this claim, since the confirmation by the United States district court, are private persons in possession of a valuable quicksilver mine, believed to be within the limits of said grant, lately opened and worked by them, of which one Daniel Gibb, of San Francisco, is believed to be the principal person interested. Affiant further says that the substantial allegations in certain depositions of said Isaac Hartman and E. W. F. Sloan, dated December, 1859, in said case, are wholly untrue, except as herein admitted."

And further affiant sayeth not.

"P. ORD"