The United States, Appellants v. Thomas Curry and Rice Garland

• Decision Date: 01 January 1848
• Citation: 12 L.Ed. 363,6 How. 106,47 U.S. 106
• Parties: THE UNITED STATES, APPELLANTS, v. THOMAS CURRY AND RICE GARLAND
• Court: U.S. Supreme Court

47 U.S. 106

6 How. 106

12 L.Ed. 363

THE UNITED STATES, APPELLANTS, v. THOMAS CURRY AND RICE GARLAND.

January Term, 1848

THIS was an appeal from the District Court of the United States for Louisiana, involving the title to a large body of land in that State. The proceedings of the District Court are sufficiently set forth in the opinion of the court and in the argument of Mr. Curry, to which the reader is referred.

Mr. Curry moved to dismiss the appeal, as having been irregularly brought up.

The motion was argued by Mr. Curry and Mr. Jones, in favor of it, and Mr. Clifford, Attorney-General, against it.

Mr. Curry said that the proceedings in this case were had under the law of Congress, passed the 26th May, 1824, 'enabling claimants to land (within the State of Missouri, &c.) to institute proceedings to try the validity of their claims,' &c. which is revived by the act of the 17th June, 1844, by 'An act to provide for the adjustment of land claims within the States of Louisiana, &c.' The first of these acts is in the 4th volume of the Statutes at Large, p. 52; the last one is to be found in the 5th volume of the same work, p. 676.

The appeal is from the United States District Court for Louisiana, sitting as a court of equity, under the provisions of the first-recited act.

The second section of this act provides, 'that every petition or suit shall be conducted as in a court of equity, &c. and in all cases the party against whom the judgment or decree of said District Court may be finally given shall be entitled to an appeal, within one year from the time of its rendition, to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the parties,' &c.

The ninth section of said act has this provision:—'That it shall be the duty of the district attorney of the United States for the district in which the suits authorized by this act shall be instituted, in every case where the decision is against the United States, and the claim exceeds one thousand acres, to make out and transmit to the Attorney-General of the United States a statement containing the facts of the case, and the points of law on which the same was decided; and if the Attorney-General shall be of opinion that the decision of the District Court was erroneous, it shall be his duty to direct an appeal to be made to the Supreme Court of the United States, and to appear and prosecute the said appeal in that court; and it shall be the further duty of the district attorney to observe the instructions given to him by the Attorney-General in that respect.'

The decree of the District Court of Louisiana sought to be appealed from was rendered and signed on the 26th day of June, 1846.

On the 5th of November, 1846, the following petition was filed, upon which the following proceedings of the court took place, viz.:——

To the Hon. T. H. McCaleb, judge of the District Court of the United States for the District of Louisiana.

The petition of the United States respectfully shows, that it is believed there is error in the judgment rendered against them in this honorable court on the twenty-sixth day of June last, 1846, in the matter of Curry and Garland v. The United States.

Wherefore they pray that your honor may be pleased to allow an appeal to be taken from said judgment to the Supreme Court of the United States.

(Signed,) THOMAS J. DURANT, Att'y U. S.

Judge's orders thereon.

Let this petition be filed and an appeal granted as prayed for.

(Signed,) THEO. H. McCALEB, U. S. Judge.

Let the said appeal be returnable on the second Monday of January, 1847.

(Signed,) THEO. H. McCALEB, U. S. Judge.

Let the return day of the appeal in this case be extended to the third Monday of February next, 1847.

(Signed,) THEO. H. McCALEB, U. S. Judge.

And on the 13th day of February, 1847, the following entry was made on the minutes, to wit:——

Saturday, February 13th, 1847.

Present, the Hon. T. H. McCaleb.

CURRY AND GARLAND v. THE UNITED STATES.

1.

Upon motion of Thomas J. Durant, United States district attorney, that the land cause No. 1, and entitled as above, appeal has been granted from the judgment rendered therein to the Supreme Court of the United States, at Washington, and that the said appeal has been made returnable on a subsequent day during the present session of the Supreme Court, and not on the first day of said term, as the practice generally is; to the end that said case of appeal might have its chance of being tried during the present session; and as no object will be gained by issuing citation to the appellees, directing them to appear at any other time than on the first day of the said term of said court, it is therefore ordered, that the order upon the said petition of appeal in said cause be so amended as to make it returnable on or before the commencement of the next annual session of the Supreme Court.

Mr. Curry further said, that no citation upon this order was issued until the 14th of August, 1847. But at that time the year within which an appeal could be taken had expired for more than a month. The citation was also irregularly served. The following extract from the record shows the date of the citation, and its irregular service.

United States District Court for the District of Louisiana.

To Thomas Curry and Rice Garland, greeting:

You are hereby cited and admonished to be and appear before the Supreme Court of the United States of America, to be holden at Washington city, on the first Monday of December next, pursuant to an order of appeal granted on the thirteenth day of February, 1847, by the district judge of the United States for the District of Louisiana, in a certain suit

wherein you are plaintiff and the United States are defendants, to show cause, if any there be, why the decree rendered on the second day of May, 1846, against the said appellants and in your favor, should not be corrected, and why speedy justice should not be done to the parties in this behalf.

Witness my hand and seal, at New Orleans, this fourteenth day of August, A. D. 1847.

THEO. H. McCALEB, U. S. Judge

Marshal's return.

Rec'd, August 27th, 1847, and on the 8th September, 1847, served copies of the above citation on Wm. C. Hammer, in person, at New Orleans, said Wm. C. Hammer's name appearing on the docket as attorney for the above-named plaintiffs.

WM. SHEARER, D'y U. S. Marshal.

Filed 15th November, 1847.

Mr. Curry therefore moved to dismiss the appeal, on the three following grounds, viz.:——

1. Because it was taken and entered in the clerk's office on the 5th November, 1846, and no citation issued or was served before the next term of this court after the appeal was entered; nor did any issue until the year allowed to appeal in had elapsed. Consequently there was no appeal within the year. See the case of Villabolos v. The United States, decided at the present term of this court.

2. There was no service of the citation of appeal, even if it had issued in time, on the appellees, as is required by law.

3. That no appeal has been directed to be made to the Supreme Court of the United States in this case by the Attorney-General, so far as the record shows, in the manner prescribed by the 9th section of the act of 26th May, 1824.

Mr. Clifford (Attorney-General) contended, on the part of the United States, that the appeal was not taken in fact until the 13th February, 1847; that an appellant may withdraw an appeal and renew it; that the appeal was prayed in open court, when no citation was necessary; that the citation was not necessarily a part of the record, and therefore was no part of a writ of error; that if served at any time before the return day, the service is good.

For these and other views he referred to 4 La. Rep. 318; Code of Practice, art. 594; 2 Smith, Ch. Pr. 14, 37; 2 Cranch, 33; 6 Binney, 106; 6 Mass. 435; 5 Howard, 295; 4 Cranch, 180; 3 Peters, 459; 7 Peters, 147.

Mr. Jones, in support of the motion, contended, that the 9th section of the act of 1824...