Ex parte In the Matter of Jacob Mussina and Angela Garcia Lafon De Tarneva, Et Al. Appellants, v. Rafael Garcia Cavazos and Wife, Et Al

• Decision Date: 01 December 1857
• Citation: 61 U.S. 280,20 How. 280,15 L.Ed. 878
• Parties: EX PARTE IN THE MATTER OF JACOB MUSSINA AND ANGELA GARCIA LAFON DE TARNEVA, ET AL. APPELLANTS, v. RAFAEL GARCIA CAVAZOS AND WIFE, ET AL
• Court: U.S. Supreme Court

61 U.S. 280

20 How. 280

15 L.Ed. 878

EX PARTE IN THE MATTER OF JACOB MUSSINA AND ANGELA

GARCIA LAFON DE TARNEVA, ET AL. APPELLANTS,

v. RAFAEL GARCIA CAVAZOS AND WIFE, ET AL.

December Term, 1857

ON motion for a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, to show cause, &c.

Mr. Benjamin, of counsel for the said Jacob Mussina and Angela Garcia Lafon de Tarneva, appellants as aforesaid, and two of the defendants in the above-entitled cause, moved the court for a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, requiring him to show cause, on the first Monday of

February next, why a peremptory writ of mandamus should not issue, directing him to allow the appeal of the said defendants from the final decree rendered against them in the above-entitled cause, and to grant all such legal orders as may be necessary to enable said defendants to bring said appeal regularly before this court. On consideration whereof, it is now here ordered by the court that a rule on the Hon. John C. Watrous, judge of the District Court of the United States for the eastern district of Texas, requiring him to show cause, on the first Monday of February next, why a peremptory writ of mandamus should not issue for the purposes above stated, be, and the same is hereby, granted. And it is further ordered, that a copy of this rule be forthwith served on the said district judge.

December 24, 1857.

A copy of this rule was served upon Judge Watrous, when he filed the following answer:

In answer to a rule recently made by this court, requiring me to show cause why a peremptory writ of mandamus should not be issued, commanding me to allow the appeal of Jacob Mussina and Maria Angela Garcia de Tarneva, two of the defendants in a cause heretofore mentioned, in the District Court of the United States for the district of Texas, I most respectfully state that I am now ready to allow said appeal, and always have been. That I have never been disposed to oppose or hinder it. My desire has always been that my decision in the case should be revised by this honorable court, where, if it was right, it would be affirmed, and where any error into which I may have fallen will be at once detected and reformed. Some time before the 15th day of January, 1857, Mr. Daniel D. Atchison, of Galveston, stated to me at chambers that he wished to take an appeal for Mussina, in the Cavazos case. I asked him whether the time limited for taking appeals had expired or not. He said that it had not. I then replied, 'Mr. Mussina has a right to the appeal, and I will give it to him, as a matter of course. Call it up in the court-house at any time when the opposing counsel is present, and I will fix the amount of the bond and perfect the appeal.' It has been my practice, whenever it is convenient, to hear both sides as to the amount of the bond. The opposing counsel, Mr. Hale, resided in Galveston—his office is but a very short distance from the court-house. The court at the time of the application was in session, and Mr. Hale was in daily attendance upon it. Notice might have been served upon him very easily, at any time. If notice had been served upon him, I should have proceeded without his presence and perfected the appeal. But I was never informed that Mr. Hale had notice of the application. No citations were ever presented to me for signature—no bond for my approval.

I have no recollection that the application was ever renewed to me, either in open court or at chambers. The conversation which occurred at my office, between Mr. Atchison and myself, as above stated, is the only one of which I have any remembrance. I do not say that the appeal was never brought to my notice in open court, but I do say, that if it ever was, I do not remember it.

The session of the court continued for several weeks, and I believe months, after the application of Mr. Atchison was made to me. Mr. Hale was in almost constant attendance upon the court in attention to his business, and it would have been very easy for Mr. Atchison to present the matter to the court when Mr. Hale was present. If he had done so, I should, without the least hesitation, have proceeded to do anything necessary to perfect the appeal. If he had stated that he could not procure the attendance of Mr. Hale, or could not wait further for his attendance without injury to his client, I should have proceeded to act on the application at once. The intervention of this court is entirely unnecessary, as I am ready at any moment, when requested, to proceed to approve a proper and sufficient appeal bond, and to sign a proper citation; and even if I should not be satisfied with the bond which might be presented to me, and should refuse to approve it, the parties affected by such refusal could at once obtain their appeal from any of the judges of this court, either during the term or afterwards. I submit, therefore, that the rule should be discharged.

JOHN C. WATROUS.

Washington, Jan. 23, 1858.

In support of this answer I beg leave to refer to several affidavits received since it was written, and which accompany it.

JOHN C. WATROUS.

February 1, 1858.

District Court of the United States, Eastern District of Texas, at Galveston.

RAFAEL GARCIA CAVAZOS ET AL. v. CHARLES STILLMAN ET AL. In Chancery, No. 41.

I, Joseph E. Love, deputy clerk of the District Court of the United States for the eastern district of Texas, at Galveston, make oath and say: That, on the 13th day of January, A. D. 1857, Daniel D. Atchison, Esq., brought into the clerk's office of said court a paper purporting to be a petition of Jacob Mussina and others, to join in an appeal theretofore taken in the above-entitled cause. Affiant believes that this was in the afternoon of said day, and the endorsement of filing made on that day is in my handwriting. I was present when the petition was presented to Judge Watrous by Mr. Atchison. His honor asked him if the five years allowed by law for taking an appeal had expired? Mr. Atchison replied, 'No.' Judge Watrous then replied, as near as I can remember, in these words: 'Certainly, sir, I will grant your request, and any day you will get the opposing counsel and come to me, I will fix the bond and perfect the appeal.' It was my duty to be in court whilst it was in session, and I was there during the greater part of the time. F. J. Parker officiated in the absence of the clerk and myself. To the best of my remembrance and belief, no application for appeal in said cause was made in open court, front the 13th to the 16th of January, inclusive. I believe I was in court, on those days, all the time it was in session.

J. E. LOVE.

United States District Court for the Eastern District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

I, James Love, clerk of the United States District Court, sitting at Galveston, state, on oath, that it appears from the minutes of the court now before me, entered in my own handwriting, that I was in court from the 13th to the 20th January, 1857, inclusive; that during that time, whilst I was in court, to the best of my recollection and belief, no application was made, in open court, by D. D. Atchison, or any other, for appeal in the above cause, on any of those days. I further state, that I was not in court all the time of its session on the days named, but was never absent without leaving one or both of my deputies, F. J. Parker and Joseph E. Love, with strict injunctions that one of them should always be at the clerk's table. The court opened at 10 A. M., at 2 P. M., with an uniformity I have not seen equalled. I usually left court between 11 and 12 o'clock.

JAMES LOVE.

In the United States District Court for the Eastern District of Texas.

CAVAZOS ET AL. v. STILLMAN ET AL. In Chancery, No. 41.

I, F. J. Parker, state, on oath, that I was present at the January term of the United States District Court for the eastern district of Texas, sitting at Galveston, on each of the days from the 13th to the 16th of January, 1857, inclusive; that during that time no application was made in open court from any source, for an appeal in said chancery cause, No. 41, or for any other action relating to the same, while I was present in court. I further state that, at the said term of said court, I was acting as deputy clerk of the same for James Love, the clerk of the court, at Galveston, and that it was my custom always to be present during the absence of the said James Love, or J. E. Love, his deputy; and that, to the best of my recollection, I was never absent from court when one or the other of the said gentlemen were not present.

F. J. PARKER.

In the United States District Court, Eastern District of Texas, Galveston.

CAVAZOS ET AL. v. STILLMAN ET AL. Chancery, No. 41

I, J. A. H. Cleveland, state, on oath, that I am deputy marshal, and have been since the appointment of Ben. McCulloch as marshal of the district of Texas, in 1853; and that, as such deputy marshal, it is my duty and my business to be present each day when the court is in session, and I can safely say that, to the best of my knowledge, I have never been absent a day when it was my duty to be present in court.

I attended regularly the January term, 1857, every day, and I never saw nor heard of any petition for an appeal in the above case until I received, a few days ago, from Mr. Hale, a document, the affidavit of Mussina for mandamus, which was copy, as he wrote me, filed by Mussina in the Supreme Court of the United States, and which said copy of affidavit he, the said Hale, wrote me to hand to Judge Watrous.

I am positively certain that the attorney for Mussina did not at any time during the January term, 1857, present or read any such paper in open court. From the fact that this case was an important one, and much clamor raised against Judge Watrous about it,...