United States v. Gomez

• Decision Date: 01 December 1865
• Parties: UNITED STATES v. GOMEZ
• Court: U.S. Supreme Court

70 U.S. 752

18 L.Ed. 212

3 Wall. 752

UNITED STATES v. GOMEZ.

December Term, 1865

the District Court for Southern California, under the act of March 3, 1851, to settle private land claims in California, reversing a decision of the Board of Land Commissioners, and confirming to one Vincente Gomez a claim for a tract or rancho called the Panoche Grande.

So far as the title involved in the claim of Gomez was concerned, the case could embrace nothing, of course, but the question, whether title was shown or not; whether the claim was well founded, or the reverse of it?

As respected this matter of the claim. The petition of the claimant to the governor was for a place described as Panoche Grande, of the extent of three square leagues. Appended to it was the customary informe; but there was no concession or grant, nor sufficient evidence of the issue of a title. It was asserted, but not proved, that the claimant had obtained the map in the record from the proper officer. One witness only, of several examined, alleged that he had ever seen the grant, and no possession was shown. A neighbor of Gomez, who had lived for twenty years in the vicinity of the land claimed, and had known Gomez and his father before him, had never heard, as it appeared afterwards, of Gomez having any land thereabouts. The commissioners rejected the claim. Whether the District Court, on appeal, if it had examined the case and been acting advisedly, would have done the same, can only be inferred. It did not, however, examine the case, nor act advisedly. The person who had been the counsel of Gomez, one Ord, having become the representative at law of the United States as the district attorney for that part of California, entered into a bargain with Gomez to allow a reversal, by the District Court, of the decree of the board, and a consequent confirmation of the claim, on condition of receiving himself a portion of the land; which afterwards he did receive. By such an abuse and betrayal of his official trust, as the reporter understood the case, the decree above mentioned was obtained. So far as Gomez was concerned, therefore, whatever title he had derived no validity from the decree.

The allegation was, however, that the land was now owned by McGarrahan, who purchased it in December, 1857, after a decree of confirmation was pronounced by the court, who having had no suspicion that there was anything fraudulent in the judicial proceedings by which the title was confirmed, was not affected by Ord's fraudulent act, and who stood in the position of an innocent purchaser, without notice.

Representing this person, and desiring to get the case dismissed from the court, as the first stept in establishing his title, Messrs. Cushing and Stone, in his behalf, set up that this court had no jurisdiction of the case. Urging, with what force they could on the evidence, McGarrahan's title as a bona fide purchaser for value of a title regular on its face, they set up further, pressing it strongly, that the court had no jurisdiction to entertain the appeal.

1st. Because the appeal was not taken within five years from the date of the decree.

2d. Because there was no citation.

3d. Because the appeal was not entered at the term of this court next succeeding the appeal.

4th. Because the pretended appeal, by virtue of which this entry was made, lost all its legal effect, by reason of the subsequent proceedings, in the District Court, on the part of the United States District Attorney.

5th. Because the decree appealed from was not a final decree.

To understand these grounds, a narrative must be borne with by the reader. Its particulars are complicated and dull, perhaps, as well. The history has been once told in the reports of two years since.¹ But not to refer the reader for half the case to a volume which he may not have at hand, the reporter must request him to tolerate a repetition, and read it again.

The case was heard in the District Court of Southern California, June 5, 1857; on which day the court delivered its 'opinion,' confirming the claim for three leagues; and ordering 'a decree' to be entered up in conformity with the opinion. But no decree was entered at that time. Was it that a thing begun in fraud found its author infirm of purpose, and was followed by irregularity? The cause did not appear. On the 7th January, 1858, a decree in extenso was filed, describing the land confirmed as 'three' leagues. The decree ended thus:

'And it appearing that, on the 5th June, 1857, the lands had been confirmed by the court to the said claimant, and it having been omitted to sign and enter a decree therefor, at the date last aforesaid, it is ordered that the same be done now for then.'

On the 4th of February of the same year, the court ordered that the claimant 'have leave to amend this decree by substituting another in its stead.' Gomez did accordingly, on the day following, procure another decree to be entered. It was much like the other, giving the name of the tract and boundaries, as it did; describing it, however, as containing four leagues. This decree ended thus:

'It appearing that, heretofore, to wit, on the 5th June, 1857, &c., the claim in this case had been confirmed by the court, but that it had been omitted by the court to sign the decree of confirmation at the time the same was made. It is, therefore, further ordered by the court that the same be signed now as then.'

In due time, the sin of the district attorney found him out. He withdrew from the country. And on motion of the United States it was, on the 21st March, 1861, ordered by the court (Ogier, J., sitting),

'That all proceedings heretofore had in the cause be set aside, and the cause be put on the calendar, and set for trial de novo, according to law.'

But, behold a new incident! Mr. Justice Ogier died. Another judge sat in his seat, and he, thinking that, after the lapse of a year, no power had rested with his deceased brother to alter or modify a decree, except to correct some clerical error, 'with great reluctance,' on the 4th August, 1862, vacated the order of March 21, made by his predecessor.

The case thus stood a decree entered on the 7th of January, 1858 (or possibly on the 5th of February following), as of the 5th of June, 1857.

At the same term, on the 25th August, 1862, on motion in open court—no citation having been issued—an appeal was allowed the United States 'from the decision and decree of this court confirming the claim of the claimant herein:' and on the 6th October following, the district attorney, reciting that the claimant was 'desirous of moving the court to set aside the order for appeal,' agreed by entry made on the minutes that all proceedings should be stayed till the next term, 'so as to give the claimant an opportunity to make such motion.' On 1st December, 1862, a motion to vacate the appeal was made and heard, and on the 4th the order for appeal was vacated; the grounds of the order being that the decree having been entered nunc pro tunc, took effect as from June 5th, 1857; and not from 7th January, 1858; thus, of course, making more than five years to the 25th August, 1862, when the appeal was allowed.

And now came an episode; one of a sort rather unusual in judicial doings. The clerk of the District Court refused to give a copy of the record. The appellants, represented by Mr. Goold, of the California bar, 'special counsel of the United States,' had asked for a copy on the 10th October, after the appeal was allowed, and the clerk had promised to give it to him. Not getting it at the promised time, he asked for it again on the 2d of December; the clerk now informed the counsel 'that he had changed his mind on the subject, and would not prepare or deliver a transcript in said cause.' Mr. Goold 'offered to pay said clerk his customary fees for a transcript of said record; but said clerk persisted in his refusal to prepare one.'

In anticipation, it would seem, of what was about to happen, the Congress of the United States had intervened, and on the 6th of August, 1861, passed a statute enacting:²

'That the district attorney of the United States of any district in California may transcribe and certify to the Supreme Court of the United States the records of the District Court of his proper district in all land cases wherein the United States is a party, upon which appeals have been or may be taken to the Supreme Court of the United States; and records so certified by such district attorney under his hand and filed in the Supreme Court of the United States shall be taken as true and valid transcripts to the same intent and purpose as if certified by the clerk of the proper district.'

McGarrahan in turn applied, 6th April, 1863, to the District Court (Haight, J.) for an injunction on the clerk and attorney to restrain them from making out any transcript; the ground of the application being that the copy asked for was for the purpose of an appeal, and that no appeal was pending. The court refused an injunction as not a proper remedy, but—observing that no appeal was pending, or from the lapse of time ever could be taken, and that the district attorney had no power to certify copies under the act of Congress except there was one, and that his certificate would be null, accordingly—declared that procuring copies on behalf of the United States in such a case was a fraud on the government, and not to be tolerated, and that 'in this case as in most litigations which had come under his observation, private parties were seeking their own ends and conducting litigations at the expense of the United States, wherein the final result was matter of entire indifference so far as the interest of the government was concerned.'

The attorney-general, Mr. Bates, in person now interposed. He wrote to the judge, and by letter sent to Mr. Goold, at San Francisco, directed him to obtain a copy, calling on the district attorney of the United States at San Francisco...