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CASTRO V. UNITED STATES, 70 U. S. 46 (1865)

U.S. Supreme Court

Castro v. United States, 70 U.S. 3 Wall. 46 46 (1865)

Castro v. United States

70 U.S. (3 Wall.) 46


1. Appeals from the district courts of California, under the act of 3 March, 1851 -- which, while giving an appeal from them to this Court, makes no provision concerning returns here, and none concerning citations, and which does not impose any limitation of time within which the appeal may be allowed -- are subject to the general regulations of the Judiciary Acts of 1789 and 1803, as construed by this Court.

Hence the allowance of the appeal, together with a copy of the record and the citation, when a citation is required, must be returned to the next term of this Court after the appeal is allowed.

Page 70 U. S. 47

2. An appeal allowed or writ of error issued must be prosecuted to the nest succeeding term; otherwise it will become void.

3. The mere presence of the district attorney of the United States in court at the time of the allowance of an appeal, at another term than that of the decision appealed from and without notice of the motion or prayer for allowance, will not dispense with citation.

The Judiciary Act of 1789 allows examination by this Court of final judgments and decrees given in the circuits [Footnote 1]

"upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party,"

such party having a notice prescribed in the act. A subsequent act of 1803, [Footnote 2] which gives an appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. But nothing is said specifically in either act as to when the writ of error, the citation, or the record is to be returned to this Court.

An Act of March 3, 1851, [Footnote 3] to ascertain and settle private land claims in the State of California authorizes, by its tenth section, the district courts there to hear cases of a certain kind, and declares that after judgment, they

"shall, on application of the party against whom judgment is rendered, grant an appeal to the Supreme Court of the United States on such security for costs in the district and supreme court as the said court shall prescribe,"

But says nothing more on this subject.

Under this act of 1851, the District Court for the Northern District of California rendered a decree on the 23d of November, 1859, in a case between Castro, claimant, and the United States. On the 24th of January, 1860, an appeal was granted on motion by the United States. This appeal seems to have been dismissed, and on the 11th of November, 1864, an appeal was allowed, on the motion of the claimant, the then district attorney of the United States being

Page 70 U. S. 48

present in court. No citation was issued upon this appeal returnable to the next term of this Court, nor was the record filed and the cause docketed during that term. On the 29th of May, 1865, however, a citation was issued, returnable at this term, and service of this citation was acknowledged by the present district attorney, and the writ was returned and the record filed at this term under an agreement between the district attorney and the attorney for the claimants to submit the cause upon printed briefs. This arrangement was subject to the approval of the attorney general, who withheld his approval.

He now moved to dismiss the appeal.

Page 70 U. S. 49

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