U. S. v. Pacheco, U. S. v. Hensley, U. S. v. Bidwell, and U. S. v. Sunot et al.

of the record; from which it appeared that the decree of the District Court, confirming the grant, was made on the 16th of July, 1855, and that the United States appealed therefrom on the said 16th of July, 1855.

Mr. Blair moved to docket and dismiss pursuant to the sixtythird rule of court, accompanied by a duly-certified transcript of the record; from which it appeared that the decree of the District Court, confirming the grant, was made on the 14th of January, 1856, and that the United States appealed therefrom on the 24th of March, 1857.

The opinion of the court refers to the first-mentioned case, because the first reason given by Mr. Crittenden was peculiar to that case; the second reason was common to all the cases.

Mr. Chief Justice TANEY delivered the opinion of the court. A motion has been made to docket and dismiss this case. It appears, by a certified copy of the record in the District Court of the United States for the northern district of California, that a decree was passed by that court on the 22d of September, 1856, confirming the title of l'acheco to certain lands therein mentioned. No appeal was taken by the United States at the term at which the decree was made, but an appeal was entered at the next succeeding term, in March, 1857.

Pacheco by his counsel now inoves to docket and dismiss the case, upon two grounds: 1st. Because the appeal was not taken at the term at which the decree was rendered; and, 2d. If the appeal might legally be taken at the succeeding term, yet no transcript of the record was filed here within the first six days of the present term of this court.

The first question raised by the motion depends upon the construction of the act of Congress of March 3, 1851, which authorizes an appeal to this court in cases of this description. The act gives the right in general terms to the party against whom the judgment is rendered; and does not limit the time within which the appeal shall be made; nor refer to any particular act of Congress by which the time shall be regulated. It must therefore be governed by the judiciary acts of 1789 and 1803, which regulate writs of error and appeals to this court from inferior tribunals. And by these acts the party may take his appeal at any time within five years after the passing of the decree by the inferior court. The appeal in question was therefore made in time; and this motion cannot be maintained on that ground.

U. S. v. Pacheco, U. S. v. Hensley, U. S. v. Bidwell, and U. S. v. Sunot et al.

The second reason assigned in support of the motion depends upon the sixty-third rule of this court. Under this rule, the appellee in a case from California is entitled to have the case docketed and dismissed, if the transcript of the record is not filed in this court within the first six days of the term next ensuing such appeal; provided the decree of the court below was rendered sixty days before the commencement of the said term of this court.

As we have already said, the decree was rendered in September, 1856, and the appeal taken in March, 1857. Consequently it was the duty of the appellant in this case to file a transcript of the record within the first six days of the present term. This was not done. And it appears that no transcript of the record has yet been filed by the appellant. The appellee is therefore entitled to have the case docketed and dismissed under the rules above mentioned.

It is true he has not filed the certificate mentioned in the rule, but has filed a full transcript of the record. But the transcript shows all of the facts which the clerk by the rule is required to certify; and it has always been held by the court to be equivalent to the certificate which the rule prescribes.

It is proper, however, to add in order to prevent mistake on this subject, that the only effect of docketing and dismissing a case under this rule, is to enable the party to proceed to execute his judgment in the court below. It removes the bar to further proceedings in that court, which the appeal created, and does nothing more. And after the case has been docketed and dismissed, the party against whom the decree was rendered, may still, at any time within five years from the date of the decree take a new appeal in the inferior court; and if he files the transcript of the record in this court within the first six days of the term next ensuing his appeal, the appeal will be valid, and the case as fully before this court, for examination and revision, as if it had been brought here at the first term. The act of Congress authorizes the appeal at any time within five years, and the period allowed by law cannot be shortened by any rule or practice of a court. Nor was it intended to be diminished by the rules in question. And when an appeal is taken in the court below, if the appellee desire a speedy and final decision or the controversy, it is in his power to bring the case up to the next succeeding term of this court.

Indeed, it sometimes happens, under this rule, that the court permits the transcript of the record to be filed by the appellant, and the case docketed for argument, at the same term at which it had previously been docketed and dismissed on the motion of the appellee. And where the appellant satisfies the

Spencer v. Lapsley.

court that the omission to file the transcript within the first six days was not owing to any fault or negligence on his part, the court has always allowed him to file it at the same term, and docket the appeal for trial, without putting him to the expense and delay of another appeal.

It follows, from what we have said, that although the case before us must be docketed and dismissed, yet this will not prevent the United States from filing a transcript at the present term, and docketing the case for argument, if they can show that the delay has not arisen from any fault or negligence on their part. And if they fail to do so, they may yet take another appeal at any time within five years, and bring here the decree of the District Court for examination and revision. And if the appellee, after the case is docketed and dismissed, proceeds upon the decree of the District Court, and obtains a patent for the land, his title will still be subject to the decision of this court, if the Government shall hereafter bring up the case within the time limited by law.

We have deemed it proper on this occasion to enter into this full explanation of the rule of court referred to, on account of the multitude of appeals which must unavoidably come up from the District Courts of California, and which, in some shape or other, may be brought before this court, upon motions to dismiss.

20h 264 ELIPHAS SPENCER, PLAINTIFF IN ERROR, v. JOHN W. Lapsley.

L-ed 902

21h 175

24h 158 24h 224 11wa676 20wa 284

125 638

1f 360 9f 863 24f 130

28f 606

The judge of the District Court of the United States in Texas had power to order the record of a suit in which he was interested to be transmitted to the Circuit Court of the United States in Louisiana.

A plea in abatement, filed in connection with pleas in bar, was irregular; and the refusal of the court below to allow the plea to be filed is not subject to the review of this court.

35 468 A contract for the sale of eleven leagues of land in Texas, issued before the

381 576

41f 282

139 586

44f 839

revolution, and subsequently located within the colonizing grant of Austin and Williams, with their consent, and certified by the Secretary of State, was good without the signature of the Governor.

So far as the land was within the colonizing grant of Robertson, his consent was not necessary, the term of his grant having expired.

Where no organization of a colonial grant had taken place by the introduction of settlers, the land not occupied was open for public sale, with the consent of the empresario, and the alcalde was a proper person to put the purchaser in possession.

That the survey was made before the order of survey was directed to the surveyor, was not fatal to the grant. Any preliminary defects were cured by the patent. The fairness of the grant cannot be investigated at law, at the instance of a third party.

A power of attorney, authenticated before a regidor, proved by the handwriting of the regidor and the assisting witnesses, held sufficient.

Spencer v. Lapsley.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana. It was an action of trespass to try title, brought by Lapsley against Spencer, originating in the District Court of the United States for Texas, which sat at Galveston, thence removed to the District Court which sat at Austin, and thence removed to the Circuit Court of the United States for the eastern district of Louisiana.

The narrative of the facts of the case, and of the points which successively arose upon the trial, is fully given in the opinion of the court; and the statement of the points which were made by the counsel who argued the case in this court, renders it unnecessary for the reporter to repeat them.

It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Hughes for the defendant, upon which side there was also a brief by Mr. Hale.

Mr. Justice CAMPBELL delivered the opinion of the court. The defendant in error, Lapsley, commenced this suit in January, 1851, in the District Court of the United States for Texas, against the plaintiff in error, Spencer, to recover a parcel of land, and damages for the ouster he had suffered. At the April term of the court, 1851, the defendant appeared and demurred to the petition, assigning-1st. The description of the premises is insufficient. 2d. The citizenship of the parties is not specifically averred. 3d. There is no endorsement on the petition, as the statutes of Texas require.

With this demurrer, an answer containing pleas of not guilty, the statute of limitations, and that the plaintiff claims under a grant with conditions, and that the grant is fraudulent, and the conditions were not performed, was filed. Subsequently to the act of Congress of 3d March, 1851, (9 Stat. at L., ch. 32, sec. 6, p. 618,) this cause was transferred to the District Court of Texas, held at Austin. No order of the court appears for this transfer, and it is presumed it was done by consent. The defendants appeared to the cause at Austin, by attorney. At the November term of that court, in 1854, the following order was made by the District Court:

"This day came the plaintiff aforesaid, by his attorney, and on motion of said plaintiff, by his attorney, the judge now presiding states and enters upon the record that he ha an interest with the plaintiff in the land in controversy in this suit, which, in his opinion, renders it improper for him to sit in the trial of the same; and, thereupon, the court upon further motion orders, because there is no Circuit Court of the United States

Spencer v. Lapsley.

in this State, that an authenticated copy of this order, and of all the record and proceedings in this action, be forthwith certified to the Circuit Court of the United States for the eastern district of the State of Louisiana, at New Orleans, that court being the most convenient of the United States Circuit Courts in adjoining States."

The authority to make this order is supposed to be derived from the act of Congress of the 3d March, 1821, (3 Stat. at L., ch. 51, p. 643,) which provides: "That in all suits and actions in any District Court of the United States, in which it shall appear that the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be the duty of such judge, on application of either party, to cause the fact to be entered on the records of the court." He was then required to order an authenticated copy of the record to be certified to the most convenient Circuit Court of an adjacent State; which Circuit Court shall, upon such record being filed with the clerk thereof, "take cognizance thereof, in the like manner as if such suit or action had been originally commenced in that court, and shall proceed to hear and determine the same accordingly; and the jurisdiction of such Circuit Court shall extend to all such cases, so removed, as were cognizable in the District Court from which the same was removed."

The record was filed in the Circuit Court in Louisiana, in April, 1855, and the cause was continued until the April term of 1856, before it came to trial. In April, 1856, the defendant moved to dismiss the cause: 1st. Because the record shows that the judge of the District Court for Texas, before the suit was brought, had an interest in the land in dispute. 2d. Said interest disqualified said judge from making an order in the cause. 3d. That his orders were void. 4th. That the Circuit Court at New Orleans had no jurisdiction.

It is quite unimportant to consider whether a judge can make any, and if any, what orders, in a suit in which he is interested. This was much discussed in the Grand Junction Canal Company v. Dimes, 12 Beav., 63; 3 H. L. Ca., 759. The act of Congress proceeds upon an acknowledgment of the maxim, "that a man should not be a judge in his own cause,' and requires a judge found in that predicament, on the motion of either party, to make an order for the removal of the cause to another competent jurisdiction. No other order in this cause was made by the district judge, and he was not authorized to act under the statute, except on motion, and when the motion was made the order was entered. The entry on the