UNITED STATES V. GOMEZ, 68 U. S. 690 (1863)

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U.S. Supreme Court

United States v. Gomez, 68 U.S. 1 Wall. 690 690 (1863)

United States v. Gomez

68 U.S. (1 Wall.) 690


1. Where the question was whether a party should be heard on appeal, and the effect of refusal to hear him would have left in full force a decree that the court was "not prepared to sanction," it was held:

That an order to enter up a decree was not to be taken as the date of a decree entered subsequently "now for then," but that the date was the day of the actual and formal entry.

That the object of a citation on appeal being notice, no citation was necessary in a case where in point of fact, by agreement of parties, actual and full knowledge by the party appellee of the other side's intention to appeal appeared on the record, and where, moreover, by such a construction as the court was inclined to put on part of the case, the appeal was taken in the same term when the decree was made.

2. That a certificate that a transcript of a record was a

"full, true, and correct copy of all the proceedings, entries, and files in the District Court

Page 68 U. S. 691

for the Southern District of California, except the transcript sent up from the Board of Land Commissioners in the case"

was so far good that the party alleging it to be bad was referred, if dissatisfied with the transcript, to his remedy of a suggestion of diminution and motion for certiorari.

Motion to dismiss an appeal from the decision of the District Court for the Southern District of California as not having been taken in time -- that is to say, within five years -- as having been made without citation and as not founded on a properly certified transcript. The case was thus:

Gomez had presented a petition to the board appointed by the Act of Congress of March 3, 1851, to settle private land claims in California, praying for confirmation of a tract called the Panoche Grande, and which, he alleged, had been granted to him in 1844 by Governor Micheltorena. The board rejected his claim, and he appealed to the district court accordingly. The case came on to be heard in that court June 5, 1857, and the record proceeds:

"Whereupon the court, being fully advised in the premises, delivered its opinion, confirming the claim to the extent called for in the transcript and papers, three leagues, and a decree was ordered to be entered up in conformity to said opinion."

This entry is dated June 5, 1857, the same day the cause was heard. On the 7th of January, 1858, a decree in extenso was filed, making the usual recitals of form, describing the land "confirmed" as

"three leagues, more or less, situate in the County of Monterey, state of California; bounded on the north by lands of Julian Usura, on the south by the hills, on the east by the Valley of the Julares, and on the west by lands of Francisco Arias."

The decree ended thus:

"And it appearing to the court that on the 5th June, A.D. 1857, the lands in this case had been confirmed by the court to the said claimant and appellant, and it having been omitted to sign and enter a decree therefor at the date last aforesaid, it is ordered that the same be done now for then."

On the 4th of February of this same year, the court "ordered chanrobles.com-red

Page 68 U. S. 692

that the appellant have leave to amend the decree filed in the case, by substituting another in its stead." Gomez did accordingly, on the day following, to-wit, the 5th of February, 1858, procure another decree to be entered in form and in extenso. It was much like the former decree, except that it described the tract by name, "Panoche Grande," giving the boundaries as before, describing it as containing four leagues. This decree ended thus:

"It appearing to this court that heretofore, to-wit, on the 5th day of June, 1857, at a regular term of this court, the claim of the appellant in this case had been confirmed by this court, but that it had been omitted by this court to sign the decree of confirmation at the time the same was made; it is therefore further ordered by this court that the same be signed now as far then."

Subsequently to this entry the United States obtained a rule to open the decree and reinstate the case, with leave to take testimony, assigning, as reason, that the decree had been improvidently entered; that new evidence, now discovered, would show the claim to be fraudulent, and that the decree itself had been fraudulently procured. Evidence was accordingly taken tending to show that the District Attorney of the United States himself -- one P. Ord -- had been a party interested in the claim. The court (Ogier, J) thereupon, on the 21st March, 1861, made this order:

"Whereas it has come to the knowledge of this Court that a decree heretofore rendered by this court in this case, was fraudulently obtained by misrepresentations of the then district attorney, P. Ord, and other counsel in the case, and it appearing to the satisfaction of the court, from testimony on record in the case, that the then district attorney, counsel for the United States was, at the time of making said decree, interested in the land claimed in said cause, adversely to the United States, and representing to the court that there was no objection to the confirmation of the claim aforesaid on the part of the United States, a decree was entered without an examination by the court into the merits of said claim, thus deceiving the court and obtaining a decree in his own favor under the false pretense of representing

Page 68 U. S. 693

the interest of United States. It is therefore ordered that all proceedings heretofore had in said cause be set aside, and the cause by put on the calendar and set for trial de novo according to law."

Another judge having afterwards been appointed to the bench of the district court, a motion was now made to vacate this order of March 21, just before recited, and on the 4th of August, 1862 -- June Term of that year -- the new judge remarking that he was not surprised that his predecessor, on learning the facts, "should have been indignant and set the whole aside," yet conceiving that after the lapse of a term the court could not alter, change or modify a decree unless to correct some clerical error, "with great reluctance" vacated the last order which that said former judge had made, and by which the proceedings had been set aside and the case placed on the calendar for trial de novo.

At this same term, on the 25th August, 1862, on motion in open court -- no citation, however, having been issued -- an appeal was allowed the United States to the Supreme Court of the United States "from the decision and decree of this Court confirming the claim of the claimant herein," and on the 6th October following, the district attorney, by writing field, reciting that the claimant was "desirous of moving the court to set aside" the order for an appeal, agreed that all proceedings should be stayed till the next term, "so as to give the claimant an opportunity to make such motion." The counsel of the claimant, on the 24th of November following, gave notice that on the opening of the court, on the 1st December, 1862, he would make a motion to vacate the order granting the appeal, and the motion was accordingly heard, and the order for appeal subsequently vacated.

The transcript of the record in the case was certified (under the Act of Congress of 6 August, 1861, § 2), by Mr. B. C. Whiting, "United States District Attorney for the Southern District of California," and certified

"that the foregoing one hundred and seven pages are a full, true, and correct copy of all the proceedings, entries, and files in the District Court of the United States for the Southern District of California

Page 68 U. S. 694

except the transcript sent up from the late Board of Land Commissioners in the case of United States v. Vincente Gomez, No. 393, on the docket of the said court, for the claim called 'Panoche Grande.'"

The motion to dismiss the appeal as already indicated was on three grounds:

1. Because no appeal had been taken until more than five years after the decree had been entered in the case, and not taken within the time therefor, which this Court had decided to be the limit.

2. Because there had been no citation to the opposite party.

3. Because what purported to be the transcript was not made and certified according to law, and was defective both for omissions and additions, and contained matters forming no portion of the record. chanrobles.com-red

Page 68 U. S. 699


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