NORTON v. RICH.

(Circuit Court for Massachusetts: 3 Mason, 443–445. 1824.) Opinion by STORY, J.

The only modes of appeal which are known in courts of admiralty (at least as far as my researches have enabled me to ascertain) are appeals made in open court, sedente curia, immediately after the decree, and then they are apud acta, or appeals made, within ten days after the decree, before a notary. 1 Bro. Civ. and Adm., 494-498; 2 Bro. Civ. and Adm., 435-439; Oughton, tit. 277, 289, 294; Clerk., Praxis, tit. 53 and note; Cod., lib. 7, tit. 62, § 6. This latter mode has never been in use in America, and has been expressly declared to be inadmissible by the supreme court. 3 Dall., 6, note. The judiciary act of 1789, ch. 20, has expressly prescribed a period of five years within which appeals may be made from the decrees of the circuit court to the supreme court, and the mode in which it is to be done, by a citation to the adverse party, etc. But it has provided no mode as to appeals from the decrees of the district courts to the circuit courts, confining the appeal only to the next circuit court. This omission seems to indicate a difference of intention in congress as to appeals from the circuit and district courts, leaving appeals from the latter to be regulated by the discretion of the court or to be made only at the time of the decree. The case, therefore, being untouched by statute, must be decided upon general principles. The acts of 1792, ch. 36, and 1793, ch. 22, have given to all the courts of the United States authority to make such regulations for their practice and business as they may deem expedient; and, doubtless, under these acts, as appeals from the district courts are unprovided for by statute, these courts may by rule prescribe the times and modes of making them. They may require appeals to be made in open court before an adjournment sine die, or afterwards, within a fixed time, in the clerk's office. It would be unreasonable to suspend the execution of a decree during a whole vacation; and after execution once authorized and carried into effect, it would be inconvenient to allow appeals to the circuit court.

§ 1334. An appeal from the district court must be taken before the adjourn ment of the court.

In this district no regulations as to appeals have ever been made by the district court. The uniform course, from the earliest period, has been to make the appeal in open court, apud acta, before the adjournment of the court. This course of practice is equivalent to a rule of the court; and must be considered as directory to all parties. Wherever a desire for further time to consider of an appeal has been asked for, it has been readily acceded to by an adjournment of the court for this purpose. If I were to grant the petition in this case it would be assuming the right to regulate the proceedings of the district court in a matter plainly within its general jurisdiction and authority. The decision of the district judge is in conformity to the general practice. No evil has hitherto grown out of it; and I do not feel myself at liberty to disturb it. If any inconvenience should arise, it can easily be obviated by a special application to, cr a general rule of, the district court. Petition dismissed.

STRODE v. THE STAFFORD JUSTICES.
(Circuit Court for Virginia: 1 Marshall, 162–165. 1810.)

Opinion by MARSHALL, C. J.

STATEMENT OF FACTS.- The sole question in this case is whether the limitation of five years can be pleaded to a writ of error in fact, and this question

depends on the construction of the twenty-second section of the original judicial act. That section contains the following clause: "And writs of error shall not be brought but within five years after rendering or passing the decree complained of.”

§ 1335. The limitation of five years for taking a writ of error does not apply to writs of error coram nobis.

That this clause, standing unconnected with other provisions, which necessarily limit its operation, would extend to writs of error in fact, will not be controverted. But it is intermingled with other clauses which essentially influence its construction. For reasons urged at the bar, which I will not repeat, it is perfectly clear that the writ of error given in the twenty-second section is not a writ of error coram nobis, but a writ to be issued from a superior court for the purpose of correcting the errors of an inferior jurisdiction. This is admitted by the counsel for the defendant; but he would obviate the inference to be drawn from it by contending that writs of error for the purpose of correcting errors in fact lie from the supreme to the circuit court, and from the circuit to the district court. In aid of this argument, he states a doubt expressed by one of the judges of the court of appeals respecting the power of that court to reverse the judgments of inferior courts for errors in fact. If, instead of a doubt, the jurisdiction had been averred, that opinion would have been totally inapplicable to this case, because the law by which the court of appeals is constituted gives them cognizance of all causes brought before them by writ of error generally, without specifying the nature of the writ or restricting their powers to errors in law; but the judicial act expressly provides that "there shall be no reversal in either court," "for any error in fact." Consequently the act of congress must be entirely disregarded before the supreme court can take cognizance of errors in fact, committed in an inferior court, in a case brought up by writ of error.

This positive prohibition of the act is supposed to be overruled by the exceptions to the clause which limits writs of error. They are, that "in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability." It is contended that these cases are necessarily cases in which the error must be an error in fact, and, therefore, the act of limitations must be construed to extend to writs of error in fact. But the truth of the original proposition cannot be conceded. Judgments may certainly be rendered against infants, femes coverts, persons non compos mentis, or imprisoned, which may be erroneous in point of law; and for these errors a writ of error may be sued out, the right to which is not barred by the act of limitations. There is, then, no necessity for giving these words a meaning repugnant to the plain terms and intention of the act.

$ 1336. Construction of statutory enactments. with reference to the others.

Each part must be construed

But it is contended that the general words: "And writs of error shall not be brought but within five years after rendering the judgment or decree complained of," are unrestricted, and apply to all writs of error whatever, whether such as congress then had in contemplation, or such as were at the time entirely out of the mind of the legislature. This would be a manifest departure from the common principles of construction, and from what appears to be the plain intent of the act. These words, though general, are not such as to show that the term "writ of error" is used in this instance in a more extended sense

than is affixed to it throughout the section, and also through the twenty-third and twenty-fourth sections. They are, "and writs of error," that is, writs of error which are the subjects of the law. It is probable that, had a more extended operation been intended, some terms would have been used indicative of that intention. Instead of the words "and writs of error," we should, most probably, have found the words, "all writs of error whatever," or "all writs of error, whether brought in a superior court or in the same court," or some other terms, indicative of an intention to regulate writs which were not the objects to which the intention of the legislature was at the time directed.

But it is urged that one sentence of a law cannot be affected by the context. I should as soon have expected the declaration that one sentence of a will was not to be affected by other parts of the will. In each, the intention of the maker is to be affected, and, consequently, each instrument must be wholly inspected. Without reasoning upon this subject, the books abound with authorities, which seem to be conclusive. In 1 Inst., 381, Lord Coke says: "It is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers." He afterwards adds: "And this exposition is ex visceribus actus." The instances which illustrate this axiom, in the construction of statutes, are numerous. They are to be found in all books which touch on the subject, and many have occurred in the supreme court of the United States. The statute of England is inapplicable, because it is not connected with other clauses.

The demurrer is sustained, and the judgment of reversal must be rendered.

§ 1337. In general.— Where a decree is ordered to be entered up, and afterwards a decree is filed in the case, which is finally amended by substituting another, the substituted decree is the final one, and an appeal within five years from its entry is in time. United States v. Gomez,* 1 Wall., 690. See § 1282.

§ 1338. Where application is made for an appeal within the proper time, the appeal will not be defeated by delay in the subsequent proceedings. United States v. Adams,* 6 Wall., 101. See § 1286.

§ 1339. Judgment was rendered October 31, 1871, and the writ of error was issued November 10th, returnable on the first Monday in December, and was served by filing in the clerk's office. The writ was dated October 16th, before the rendition of the judgment, but this was held to be a mistake that did not vitiate the writ. O'Dowd v. Russell,* 14 Wall., 402.

§ 1340. An appeal in equity, admiralty, and prize causes may be taken at any time within five years from the final decree, subject to the saving contained in the twenty-second section of the act of 1789. The San Pedro, 2 Wheat., 132. See the case, §§ 2754-55. See § 1288.

§ 1341. A writ of error issued in September may bear teste of the February term preceding, notwithstanding the intervention of the August term between the teste and the return of the writ. Blackwell v. Patten, 7 Cr., 277.

§ 1342. A statute of Maryland, as to the time within which appeals must be prosecuted, construed. Scott v. Law,* 2 Cr. C. C., 530.

§ 1343. Effect of a state of war.- - The limitation prescribed by the act of 1789 for appeals to the supreme court did not run during the rebellion against a party residing out of a rebellious state in which the judgment or decree was rendered; the act of March 2, 1867, prescribing a limitation of one year from its passage within which to bring all appeals or writs of error which were suspended or interrupted by the rebellion, is an enabling act, and not a restraining one. The Protector,* 9 Wall., 687.

§ 1344. An appeal from a circuit court in a state afterwards in rebellion, which was not filed within five years after the rendition of the decree, less the time during which such state was in rebellion, will be dismissed as having been taken too late; and for the purpose of computing the time, the date of the opening of the war will be taken to be the date of the proclamation embracing such state in the blockade, and the date of the close of the war will be held to be the date of the proclamation declaring that the war had closed in such state. The Protector, 12 Wall., 702.

§ 1345. A second appeal will lie at any time within five years from the entry of the decree, though the first appeal was dismissed for an informality in prosecuting it. Yeaton v. Lenox, 8 Pet., 123. See § 1276.

§ 1346. A bill of review lies for errors apparent in the decree only, but evidence referred to in the decree is part of it. It is in the nature of a writ of error, and the five years' limitation of writs of error applies to it. Whiting v. Bank of United States, 1 McL., 251. See § 1294. § 1347. In admiralty.- An appeal from the district to the circuit court on an information in admiralty is properly entered in the circuit court at the next term after the appeal is taken, though at that time the term of the district court at which the judgment was entered has not ended. United States v. Certain Hogsheads of Molasses, 1 Curt., 276. See § 1290.

§ 1348. From probate court of Utah.— An appeal from the probate court of Utah to the territorial district court in town site cases under the territorial law may be taken within one year. Cannon v. Pratt, 9 Otto, 620.

§ 1349. The filing of a petition of appeal in the district court is an entry of the appeal within § 4982 of the Revised Statutes. Platt v. Preston, 8 Fed. R., 182.

§ 1330. The circuit court acquires jurisdiction of an appeal though the appellant neglects for more than ten days to file his declaration of appeal in the circuit court, if all the other steps necessary to perfect the appeal are duly taken. Barron v. Morris,* 16 N. B. R., 377.

IX. TIME OF FILING TRANSCRIPT.

SUMMARY - Appellant prevented from filing transcript in time, § 1351.- Dismissal; second appeal within the five years, § 1352.- Case may be dismissed at any time before final hearing, § 1353.- Return and flling, §§ 1354, 1355.

§ 1351. The general rule is, that the transcript must be filed in the supreme court, and the case docketed, at the term succeeding the appeal, in order to give the court jurisdiction. But where the appellant, having seasonably procured the allowance of an appeal, is prevented from obtaining the transcript by the fraud of the other party, or by the order of the court, or by the contumacy of the clerk, the rule does not apply, provided it appears that the appellant was guilty of no laches or want of diligence in his efforts to prosecute the appeal. United States v. Gomez, §§ 1356-1360. See §§ 1283, 1284, 1286.

§ 1352. The transcript of an appeal must be filed in the supreme court and the case docketed at the term next succeeding the appeal, or the appellee may docket and dismiss; but in such case the appellant may take another appeal within five years from the date of the deSteamer Virginia v. West, §§ 1361, 1332. See § 1276; also XIX. 3.

cree.

§ 1353. If the transcript is not filed and the cause docketed during the term to which it is made returnable, the appeal or writ of error may be dismissed at any time before the final hearing, either by the court itself, or on motion of the appellee or defendant in error. Grigsby v. Purcell, SS 1363, 1364.

§ 1354. A writ of error must be made returnable on a day certain, and the transcript must be filed at the next succeeding term; the want of a proper writ of error is not waived by appearance. Carroll v. Dorsey, §§ 1365, 1366.

§ 1355. A writ of error must be made returnable to the first day of the term; and if defective in this particular it is not amendable, nor can the supreme court cure the defect by issuing a citation. Insurance Co. v. Mordecai, §§ 1367, 1368.

APPEAL from U. S. District Court for Southern California.

Opinion by MR. JUSTICE CLIFFORD.

STATEMENT OF FACTS.- Claim of the appellee, as described in his petition to the land commissioners, was for a tract of land situated in California called Panoche Grande, of the extent of four square leagues, and he alleged that the tract was granted to him in the year 1844 by Governor Manuel Micheltorena. Unable to exhibit his title papers, as required by the act of congress upon the subject, he relied upon parol proof to show their existence, loss and contents. Commissioners rejected the claim, and the claimant appealed to the district court, where the claim for the whole tract was confirmed. Final decree, as

amended, was entered on the 5th day of February, 1858; and on the 25th day of August, 1862, the appeal of the United States was allowed.

1. Appellants insist that the claim is utterly without merit, and that the decree of the district court should be reversed. On the other hand, the claimant denies that this court has jurisdiction of the cause, and contends that the appeal should be dismissed. Principal difficulty in the case grows out of certain proceedings in the cause, which have taken place since it first made its appearance in this court. Docket entries for the December term, 1858, show that the case was first presented here at that term by the claimant as an appeal not prosecuted, and that it was, on the production of the record, on his motion, dismissed in conformity to the rules of court for the want of prosecution. Mandate of the court dismissing the appeal was, on the 18th day of March following, delivered to the assignee of the claimant.

2. Nothing further was done in the cause in this court until the December term, 1859, when the attorney-general filed a motion to rescind the decree dismissing the cause and to revoke the mandate, basing the motion upon the ground that the decree and mandate had both been procured by misrepresentation and fraud. Minutes of the clerk, also, show that he filed his motion on the 27th day of January, 1860, and that the claimant, on the 2d day of March following, filed three other motions. First motion of the claimant was for mandamus to the district court, to compel the judge to file the mandate and permit the execution of the decree confirming the claim. Second motion was for mandamus to compel the district court to dismiss an application before it to open the decree and grant a rehearing. Third motion was for mandamus to compel the surveyor-general to survey the land confirmed by the decree. All those motions were heard at the same time, and the court overruled the several motions of the claimant, and entered a decree rescinding, the decree dismissing the appeal, and revoked and canceled the mandate as moved by the attorneygeneral. United States v. Gomez, 23 How., 326. Affidavits offered showed that no appeal had been taken by the United States, and that the statement that such an order had been made as was exhibited in the transcript and filed in the case was false. They showed not only that the United States had not appealed, but that a motion filed by their special counsel for a rehearing was still pending in the district court. Decision of the court, therefore, was, that the appeal was not before the court when the cause was docketed and dismissed.

3. Next appearance of the cause here was at the December term, 1863, which is the appeal now before the court. Record was filed and the cause docketed on the 29th day of February, 1864; and on the 31st day of March following the claimant filed a motion to dismiss the appeal, because, as therein alleged, this court had no jurisdiction "to hear and determine the same." 1. Because the five years within which an appeal can be taken had expired before the appeal was claimed and allowed. 2. Because the entry of the appeal was made without authority, and had been set aside. 3. Because there was no citation. 4. Because the appeal was not seasonably prosecuted. 5. Because the transcript of the record was incomplete. Parties were heard upon that motion, and on the 18th day of April, of the same year, it was unanimously overruled. United States v. Gomez, 1 Wall., 698.

4. Coming to the present term of the court, the docket entries show that the motion under consideration was filed by the claimant on the 9th day of February last. He moved the court to strike out certain matters printed in the rec