CALIFORNIA LAND CASES.

S$ 2953-2965.

XXIV. CALIFORNIA LAND CASES.

§ 2953. In general.- An appeal from the decision of the board of land commissioners, under the act of 1851, to the district court of California, opens the whole issue to consideration. It is essentially an original suit, in which new evidence can be given, and in which the whole case is to be tried over. Le Roy v. Wright, 4 Saw., 533.

§ 2954. Decrees of the district court of California confirming surveys made under proceedings to confirm the title to Mexican grants are conclusive, not only as to the boundary, but also as to the validity of the title. United States v. Billings, 2 Wall., 448.

§ 2955. Appeals to the supreme court from the district court of California in proceedings to confirm the title to Mexican grants, which are brought in the name of the United States, but really in the interest of private parties, are discouraged when taken on frivolous objections to the title or to the regularity of the surveys. The party wronged by the appeal gets no costs and the government has to pay the expenses of the unjust and oppressive litigation. United States v. Billings, 2 Wall., 449.

§ 2956. An appeal to the supreme court from the district court in California land cases, though suspending the operation of the decree, does not take from it all efficacy as evidence of title of the confirmees, or of parties claiming under them, in cases in which the judgment of the supreme court could not affect the title set up or claimed under. Grisar v. McDowell, 6 Wall., 377.

2957. Lies, when.- No appeal, in the strict sense of that word, is proper from the decision of the board of land commissioners to the district court for California, as they can be invested with no part of the judicial power of the United States; but the district court has power, under act of congress, to revise their decisions, and such proceeding is treated as an original proceeding in the district court, and an appeal lies to the supreme court from the decision of the district court in such a case. United States v. Ritchie, 17 How., 533.

$2958. The decree of the district court, in case of appeals from the board of land commissioners in private land claims in California, is not final until a survey has been made according to the terms of its decree, and no appeal lies to the supreme court while something yet remains to be done to perfect the survey. United States v. Fossatt, 21 How., 450.

§ 2959. In the case of private California land claims appealed to the district court from the decision of the board of land commissioners, an appeal lies to the supreme from the decree of the district court establishing the authenticity of the claim, though questions of taxation and boundary still remain to be settled. Though such a decree is not final, yet the established practice has been, and is, to allow the appeal. An appeal lies also from the final decree of the district court confirming the title to the claim as finally surveyed and located. The power of the district court continues till the claim is finally fully located and a patent issues, and an appeal to the supreme court will be dismissed if it appears that only three sides of the tract awarded by a former decree have been located. Ibid.

2960. No appeal is allowed from the district to the circuit court of California under the act of 1864, providing for the appeal to the circuit court of cases formerly appealable to the supreme court, from a decree of the district court in which the time to appeal to the supreme court had already expired. Mesa v. United States, 4 Saw., 552.

§ 2961. It seems that under the act of July 1, 1864, which provided for appeals in private land suits from the district to the circuit court of California, instead of to the supreme court, no appeal lies from the determination of the circuit court in cases so appealed to it. The Pueblo Case, City of San Francisco v. United States, 4 Saw., 578.

§ 2962. Time.- Under the act of 1851, the court may grant an appeal after the expiration of the term at which the decree was rendered. The language of the statute allowing the appeal is, "the district court shall proceed to render judgment, and shall, on the application of the party against whom judgment is rendered, grant an appeal to the supreme court." No time is mentioned. Noé v. United States,* Hoff., 242.

§ 2963. Notice.- If notice is not given within the proper time of intention to appeal from the award of the board of land commissioners to the district court of the northern district of California, the district court has no power to allow such notice to be filed nunc pro tunc. Yturbide v. United States, Hoff., 274.

$ 2964. Where the law requires a notice of appeal from the decision of the board of land commissioners to the district court to be filed within six months, the district court cannot, by order, allow the filing of such notice nunc pro tunc, even if the delay is excused. Yturbide v. United States, 22 How., 292.

§ 2965. Under the law relating to proceedings to confirm Mexican and Spanish grants, a transcript of the proceedings, and decision of the board of commissioners, was to be filed with

the district court, and this was to act as ipso facto an appeal from their decision, in behalf of the party against whom it was given. If such decision was in favor of the claimant, the attorney-general had six months within which to give notice that the appeal would be prosecuted. In this case the attorney-general filed a notice that he would not prosecute the appeal, and it was dismissed. Held, that this left the original decree as if it had never been appealed from, and that a decree of the district court allowing the claimant to proceed upon such decree as upon a final decree was proper. Beard v. Federy, 3 Wall., 486. See LAND AND LAND TITLES.

XXV. WRIT OF ERROR CORAM NOBIS.

§ 2966. Coram nobis.- A writ of error coram nobis lies in the same court where judgment was given, when the error was not for any fault in the court, but for some defect in the process of the cause, other than in the judgment, or for default in adjudging execution, or for misprision of the clerk, or for error in fact. It will lie to set aside an erroneous execution. Phillips v. Russell,* Hemp., 62.

§ 2967. A writ of error coram nobis will lie in the circuit court to correct its own judgment, when it appears that the defendant was a married woman at the time of the commencement of the action. Albree v. Johnson, 1 Flip., 343.

§ 2968. It seems that although a writ of error issued by a court to correct its own judgment is called a writ of error coram nobis in the state practice, yet when used in the circuit courts of the United States it may properly be called a writ of error coram vobis, because issued in the name of the president of the United States, and tested in the name of the chief justice. Ledgerwood v. Pickett, 1 McL., 143.

§ 2969. Coram vobis.- It seems that the writ of error coram vobis is the proper remedy to procure the reversal of a judgment of a state court for errors not appearing in the record, where a writ of error from such judgment to the highest court of the state has been quashed in accordance with a decision of the supreme court of the United States. Davis v. Packard, 8 Pet., 324.

§ 2970. It seems that the appropriate use of the writ of error coram vobis is to enable a court to correct its own errors committed before the rendition of the judgment, but in modern practice this is usually done by motion. Pickett v. Legerwood, 7 Pet., 147.

§ 2971. It seems that a mere mistake of the clerk in entering a judgment for a less sum than rendered is a clerical misprision, amendable upon a writ of error coram vobis. Alston v. Munford, 1 Marsh., 276.

§ 2972. It seems that a writ of error coram vobis is usually employed to bring before the same court in which the error was committed some matter of fact which had escaped attention which was material to the proceedings; as, that one of the parties to a judgment had died before it was rendered, or was an infant, and no guardian had been appointed, or was a feme covert, or an error was made in the process through default of the clerk. Such writ does not reach to facts submitted to a jury or found by a referee, or by the court sitting to try the issues. Bronson v. Schulten, 14 Otto, 416. See § 147.

XXVI. CERTIORARI.

§ 2973. Allowed, when.- A certiorari is used by the supreme court only as auxiliary process to enable it to obtain further information in respect to some matter already before it for adjudication. United States v. Young,* 4 Otto, 258.

§ 2974. Certiorari is properly used to bring up to the court of error, on an allegation of diminution, outbranches of the record, or other documents and writings in the court below which have not been previously certified or sent. United States v. Adams,* 9 Wall., 661.

§ 2975. Where the record is incomplete, the appellee should suggest a diminution and ask for a certiorari. United States v. Gomez,* 1 Wall., 690.

2976. Where the record shows clearly and fully the whole case upon which the court must pass, a certiorari for a more perfect record will not be awarded. McGuire v. The Commonwealth,* 3 Wall., 382.

§ 2977. A motion for a certiorari to supply defects in the record overruled, the court being satisfied, from an inspection of the record, that the granting of the motion would avail nothing, it being necessary to dismiss for want of jurisdiction. Brown v. Wiley,* 4 Wall., 165.

2978. On a suggestion that the citation was served but not sent up with the record, a certiorari will be awarded. Field v. Milton,* 3 Cr., 514.

§ 2979. A certiorari will not be awarded on a suggestion that the clerk has omitted to append his certificate to the effect that the transcript contains the whole record; such a defect, in a case of contumacy, might be remedied by a mandamus. (Leave was granted in this case to withdraw the transcript to enable the clerk to append the necessary certificate.) Hodges v. Vaughan,* 19 Wall., 12.

§ 2980. Defective transcript.—On motion to dismiss an appeal, because the transcript did not contain a true copy of the record and of all the proceedings in the case, the court said: “Probably the stipulation filed in the case allowing the appellants to complete and perfect the transcript in the case may be regarded as an answer to the first ground of the motion, but if not, it is quite clear that the certificate of the clerk of the court must be regarded as prima facie evidence that the matter of fact alleged in the motion is not well founded. Deficiencies, if any, may be supplied by certiorari." The Rio Grande,* 19 Wall., 178.

§ 2981. Awarded by court of its own motion. Where the point is made in the defendant's brief that there is no judgment disclosed by the record on which the supreme court can act, and the fact appears so from the record, but the defendant makes no motion to dismiss before the hearing, and the case is argued, the supreme court, on its own motion, will issue a certiorari to correct the record, and, on receiving the record of the judgment, will decide the case as if the record had been perfect in the beginning. Sweeney v. Lomme, 22 Wall., 214.

§ 2982. If the supreme court, in a case removed to it by writ of error, discovers by inspection of the record that an important paper mentioned in the bill of exceptions is missing, it will, of its own motion, after the submission of the case, award a certiorari to bring the missing paper before it. Morgan v. Curtenius, 19 How., 8.

§ 2983. Delay.- Where upon an appeal to the supreme court a diminution of the record is suggested, even at a third term, a certiorari will be awarded on the delay being properly accounted for, but if not returned before the case is called the case will not be continued. Clark v. Hackett, 1 Black, 78.

§ 2984. Under special circumstances a certiorari for diminution of the record may be allowed after the first term after which a case is entered, where it has already been continued till the next term. Stearns v. United States, 4 Wall., 1.

$2985. Return.- A writ of certiorari, issued to supplement a defective return to a writ of error, should conform to the same rules as regards return as the writ of error itself. Fenemore v. United States, 3 Dal., 360, n.

§ 2986. To add to bill of exceptions. The supreme court will not issue a certiorari to the circuit court for the purpose of adding to a bill of exceptions the remainder of the charge of the court if all the several matters of law specially excepted to are therein set forth. Neither will it add to the record proper exceptions actually taken at the trial and omitted from the bill of exceptions, unless such exceptions are certified to the supreme court under the hand and seal of the trial judge. The supreme court can in no respect alter or amend the exception certified under the seal of the judge of the circuit court, either by referring to the charge at length, or the notes of the presiding judge. Stimpson v. West Chester R'y Co., 3 How., 553.

XXVII. COSTS IN APPELLATE COURT.

§ 2987. In general.— When the judgment of an inferior court is affirmed on error or appeal, it is of course that the defendant in error has judgment for costs. But when the judgment below is reversed, costs are not of course. So on a reversal in case of collision the court (GRIER, J.), admitting that the cases sanction the rule that courts of admiralty have a wide discretion in the allowance of costs, refused to make an allowance for counsel fees. The Margaret v. The Conestoga,* 2 Wall. Jr., 116.

§ 2988. Where both parties appeal and the decree of the court below is not disturbed, neither party recovers costs in the appellate court. The Williom Cox,* 9 Fed. R., 672.

§ 2989. United States not liable for.- No costs allowed where a writ of error sued out by the United States is dismissed; the United States never pay costs. United States v. Barker,* 2 Wheat., 395.

$2990. Printing the record.-Under the act of March 3, 1877, the cost of printing all records in the supreme court paid by the government must be taxed against the losing party. And where the record was printed by the successful party after the above act went into effect, but the cost was no greater than it would have been at the government printing office, the cost was taxed against the losing party. Railroad Co. v. Collector,* 10 Otto, 594.

§ 2991. Each party is liable to the clerk for his fees for services performed for such party, without reference to which party recovers judgment. Caldwell v. Jackson,* 7 Cr., 276.

§ 2992. On reversal.- Where the judgment of the highest court of a state was reversed, and that of the inferior court affirmed, the costs in both courts were allowed, and the mandate for execution was issued to the inferior court. Clerke v. Harwood,* 3 Dal., 342. § 2993. In all cases of reversal of any judgment or decree, except where the reversal is for want of jurisdiction, costs are allowed for the plaintiff in error, or appellant, as the case may be, unless otherwise ordered by the court. Bradstreet v. Potter,* 16 Pet., 317.

§ 2994. A circuit court may always allow execution for the costs in a chancery case upon reversal, though the mandate of the supreme court on reversal is silent as to such costs. Riddle v. Mandeville, 6 Cr., 86.

§ 2995. On a writ of error from the supreme court to the circuit court of the District of Columbia, if the judgment is reversed, and the court below is directed to enter judgment in favor of the plaintiff in error, such court will, of course, enter judgment with the costs of the lower court. M'Knight v. Craig, 6 Cr., 187.

§ 2996. Dismissal for want of jurisdiction.— No costs allowed where the cause is dismissed for want of jurisdiction. McIver v. Wattles,* 9 Wheat., 650; Inglee v. Coolidge,* 2 Wheat., 363; Strader v. Graham,* 18 How., 602; Winchester v. Jackson,* 3 Cr., 514; Montalet v. Murray, 4 Cr., 47.

$ 2997. If the original defendant be also the defendant in error costs will be allowed on dismissal of the writ for want of jurisdiction. Winchester v. Jackson,* 3 Cr., 514.

§ 2998. In admiralty.- Where both parties appealed, in an admiralty proceeding in rem, from the decree of the district court, and the decree was affirmed, no costs on appeal were allowed to either party. The Parkersburg, 5 Blatch., 248; The Miletus, 5 Blatch., 335.

66

§ 2999. On a question of costs on an appeal in admiralty, where the decree below is reversed on new evidence, GRIER, J., delivered the following opinion: The practice at this bar having been for many years to proceed de novo in the testimony, I hardly feel at liberty now to change it; though I have rather grumbled in one or two cases, where parties finding out from the opinion of the district judge where their case pinched, have taken new testimony here to help them out of their difficulty, and have thus presented so different a case to me, that I have reversed my brother Kane's decisions, when they were perfectly right, upon the facts presented to him. But under such circumstances I have allowed no costs to the party succeeding, and generally speaking, should think this rule to be but equitable." Carrigan v. The Charles Pitman, 1 Wall. Jr., 307.

§ 3000. On appeal from the district to the circuit court in an admiralty proceeding in rem, costs were refused to the libelant on a decree in his favor of the same amount as that rendered in the court below, because of the exorbitant and unfounded claims brought forward by him, and the expense and trouble to which he had wantonly subjected the claimants, but costs of the appeal were awarded against him in favor of the claimant. The Colon, 18 Blatch., 286. See § 1713.

XXVIII. CRIMINAL CASES.

SUMMARY - Accused must be where he can be made to respond, § 3001.

§ 3001. It is clearly within the discretion of the supreme court to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to the judgment that may be rendered. Smith v. United States, § 3002.

[NOTES.-See $$ 3003-3012.]

SMITH v. UNITED STATES.

(4 Otto, 97, 98. 1876.)

ERROR to the Supreme Court of Washington Territory.

$ 3002. A criminal case will not be heard unless the accused is where he can be made to respond to a judgment.

Opinion by WAITE, C. J.

It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If

we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case. This cause was docketed here December 29, 1870. In due time a brief was filed on behalf of the plaintiff in error, and the cause has been regularly continued at every term since, no one appearing here in person to represent the plaintiff. At this term we dismissed the writ, on motion of the United States, for want of prosecution, but have since reinstated it on motion of the counsel for the plaintiff in error, who now moves to have it set down for argument. This motion we deny, and order that, unless the plaintiff in error submit himself to the jurisdiction of the court below on or before the first day of our next term, the cause be left off the docket after that time. The People v. Genet, 59 N. Y., 80; Leftwich's Case, 20 Gratt., 723; Commonwealth v. Andrews, 97 Mass., 544. See, also, 31 Me., 592.

Motion to set down the case for argument denied.

§ 3003. Jurisdiction of supreme court. The supreme court has no appellate jurisdiction in criminal cases. It cannot entertain a writ of error or revise the judgment of the circuit court in any case where a party has been convicted of a public offense. Not being able to exercise such appellate jurisdiction directly, it cannot do so indirectly, and so no writ of habeas corpus lies from the supreme court to review the judgment of the circuit court committing a person for contempt. Ex parte Kearney, 7 Wheat., 42.

§ 3004. It seems that the supreme court of the United States has no appellate jurisdiction to revise the sentences of inferior courts in criminal cases, even should it appear that the punishment was excessive under the constitution of the United States. Ex parte Watkins, 7 Pet., 574.

§ 3005. The only mode contemplated by the laws of the United States to revise the opinions of the judges of the circuit court in criminal cases is in cases where the judges are divided in opinion at the trial; and then the point of division may be certified to the supreme court for final decision. The circuit court in such cases has no power to grant a bill of exceptions. United States v. Gibert, 2 Sumn., 105.

§ 3006. The supreme court has no authority to grant a writ of prohibition to prevent the execution of the sentence of the circuit court in a criminal case. In criminal cases the proceedings and judgment of the circuit court cannot be revised or controlled in the supreme court in any form of proceeding, either by writ of error or prohibition. The only case in which the supreme court is authorized, even to express an opinion on the proceedings in a circuit court in a criminal case, is where the judges are opposed in opinion upon a question at the trial, and certify it to the supreme court for decision. Ex parte Gordon, 1 Black, 504. § 3007. No bill of exceptions lies in the circuit court of the United States in capital cases. As the sole office of a bill of exceptions is to present matter to the consideration of an appellate court, it would be nugatory in such cases, for they are not reviewable by the supreme court. United States v. Gibert, 2 Sumn., 105.

§ 3008. It seems that at common law no bill of exceptions lay in a capital case. United States v. Gibert, 2 Sumn., 105.

§ 3009. Modifying sentence.— In the case of an illegal and excessive judgment on conviction for a misdemeanor, the territorial supreme court has the power to affirm the conviction, modify the judgment, and remit the case to the court below, that the proper judgment may there be entered. The Territory v. Conrad,* 1 Dak. T., 371.

§ 3010. On a writ of error to the district court in a criminal case, the circuit court, on an affirmance of the judgment of the court below, may change the sentence — may enter its own judgment. United States v. Wynn,* 11 Fed. R., 57; Bates v. United States, 10 Fed. R., 96.

§ 3011. What record must show. On a writ of error from the territorial supreme court in a criminal case, the record must show that the prisoner was present in court during all the time of the trial, and when the verdict was rendered and sentence passed, and also that the jury were legally disposed of during an adjournment of court from one day over to the next. Shapoonmash v. United States,* 1 Wash. Ty., 221.

§ 3012. A nolle prosequi having been entered in the court below in a criminal case, the writ of error was dismissed. United States v. Phillips,* 6 Pet., 776.