UNITED STATES
v.
GOMEZ.

*760 Messrs. Black and Goold, for the United States.

Mr. Justice CLIFFORD delivered the opinion of the court.

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 fifth day of February, 1858; and on the twenty-fifth 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 *761 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 eighteenth 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 twenty-seventh day of January, 1860, and that the claimant, on the second 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 cancelled the mandate as moved by the attorney-general.^[*] 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 *762 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 twenty-ninth day of February, 1864; and on the thirty-first 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 eighteenth day of April, of the same year, it was unanimously overruled.^[*]

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 ninth day of February last. He moved the court to strike out certain matters printed in the record, and requested the court to determine the fourth cause assigned in the motion of the preceding term for the dismissal of the cause, which, as he alleges, was not noticed, considered, or decided, when the motion was overruled and denied. Both branches of the motion were subsequently argued by counsel, and on the twenty-sixth day of February last the motion was overruled; but the Chief Justice, in announcing the result, remarked that the question of jurisdiction would be open when the cause should be argued upon the merits.

Since that time, the cause has been reached in the regular call of the docket, and has been fully argued on both sides. Claimant still denies the jurisdiction of the court, and the *763 counsel have reargued all the questions of jurisdiction presented for decision in the original motion to dismiss.

5. Three of those questions, to wit, the first, third, and fifth, were carefully examined and decided by this court during the same term in which the motion was filed, and it is only necessary to refer to that decision as the final determination of the court.^[*] Special mention was not made of the second question presented in the motion, because what was said by the court, in disposing of the first question, rendered any further remarks upon that subject unnecessary. Express statement of the opinion is, that the appeal to this court was allowed on the day therein specified. But the suggestion is, that the court did not decide the fourth question presented for decision, and the suggestion, so far as it applies to the opinion of the court, is certainly well founded.

Fourth objection to the jurisdiction of the court was, that the appeal, even if legally taken and allowed, became null and void for the want of seasonable prosecution. General rule, as established by repeated decisions, undoubtedly is, that the transcript must be filed here, and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction.^[†] Argument upon that subject is unnecessary, as the rule has been reaffirmed at this term in an opinion delivered by the Chief Justice.^[‡] Unless the case, therefore, falls within some exception to the general rule of practice, as derived from the act of Congress allowing appeals, the motion of the claimant must prevail.

6. Certain exceptions to that general rule are recognized and allowed, which are as well established as the rule itself. They are admitted as indispensable limitations to guard against fraud and circumvention, and to prevent a failure of justice. Where the appellant, having seasonably procured the allowance of the appeal, is prevented from obtaining the transcript by the fraud of the other party, or by the order *764 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.^[*] Order allowing the appeal in this case was entered on the twenty-fifth day of August, 1862; but on the sixth day of October following, a stipulation was entered in the minutes, that the transcript should be withheld until the next term of that court, in order to give the claimant an opportunity to move the court to set aside the order of appeal. Such a motion was accordingly made by the claimant on the first day of the succeeding December; and on the fourth day of the same month the court directed that the order allowing the appeal should be vacated and set aside. Reason for vacating the appeal as assigned was, that the five years had expired before it was allowed, which is directly contrary to the decision of this court, and consequently must be considered as overruled.^[†] Although the decision of the court was erroneous, still the proceedings under the motion had the effect to prevent the appellants, in the meantime, from obtaining a copy of the transcript.

Session of this court for that term commenced four days before the order of the District Court was announced, vacating the appeal. Suppose the explanatory facts stopped here, it might well be assumed that it was the conduct of the claimant and the action of the court which prevented the appellants from seasonably perfecting the appeal; but they do not, by any means, stop at that point. Appellants demanded the transcript on the tenth day of October next after the appeal was allowed, and the clerk agreed that it should be prepared and delivered. Failing to obtain it, they, on the second day of December following, again demanded it, and then, for the first time, were informed by the clerk, that he would not furnish the document. Present claimant, on the sixth day of April, 1863, instituted a proceeding in the District Court, to enjoin the clerk and district *765 attorney from making out and certifying the transcript of the record, upon the ground that the order allowing the appeal was entered without authority of law, and that the appeal had been properly revoked and set aside. Result was, that the judge refused to grant the injunction; but he reiterated his opinion that no appeal was pending, and remarked that the procuring copies for the United States, in such a case, was a fraud upon the government and was not to be tolerated.

Six times the demand was made of the clerk for the transcript, and the request, as often as it was made, was refused. Such demand was made by the special counsel of the United States, and by the district attorney, and by the authority and direction of the attorney-general. Throughout, the clerk refused to furnish the transcript; but finally consented to furnish the attorney-general a copy of each paper in the case; and those separate papers, it is understood, were appended together and duly certified by the district attorney, as appears in the record.^[*]

7. Assuming the facts to be as stated, it is obvious that the case falls within the exception to the general rule, as recognized and established in the case of United States v. Booth, to which reference has already been made. Writ of error in that case was returnable at the December Term, 1855, and it was accompanied by a citation requiring the defendant to appear on the first day of that term. No return, however, was made at that time, and on the first day of February following, the attorney-general filed affidavits, showing that the writ of error and citation had been duly served, and that the State court had directed the clerk to make no return. Whereupon this court passed an order commanding the clerk of the State court to make the required return, and the cause was continued; but none such was ever made. Unable to procure any such return, the attorney-general was allowed, on the 27th day of February, 1857, to file the copy of the record produced when the application *766 was made for the writ of error, and on the sixth day of March following, the court ordered that it should have the same effect as if it had been regularly filed by the clerk. Evidently the power to retain jurisdiction in the case before the court is even better supported than it was in that case, because the transcript in this case is duly certified under a new provision in a subsequent act of Congress.^[*]

8. Mandamus unquestionably is the proper remedy where the appeal is refused, and it is an appropriate remedy to compel the production of the transcript. Strong doubts are entertained, however, whether it would have been an adequate remedy in this case, because it is more than probable that, if the motion had been made, the affidavits showing the refusal of the clerk to furnish a copy, would have been met by counter affidavits, showing that the appeal had been vacated; and in that state of the case it would have been difficult for the court to have decided what was right and proper between the parties, without the opportunity of inspecting the record.

Grant, however, that the appellants might have had an adequate remedy in a motion to this court for a mandamus, still it is clear that they had a right, under the circumstances of this case, to invoke the benefit of the special provision in the act of Congress referred to as a cumulative means of securing their rights. Application was accordingly made to the district attorney, and he, without delay, made the certificate exhibited in the record. Conclusion therefore is, that the case, in either point of view, is regularly before the court, and all the motions to dismiss are overruled.

9. Regarding the case as regularly before the court, it becomes necessary to examine the merits of the claim. Some suspicion attaches to the claim, because it is made for four leagues of land, whereas the only document introduced in support of it, which is of the least probative force, represents the original claimant as having asked for but three leagues. Document referred to purports to be the petition of the *767 claimant to the governor, and there is appended to it the usual infórme; but there is no concession or grant, nor is there any satisfactory evidence that any title of any kind was ever issued by the governor to the claimant. He states in his petition to the land commissioners, that he obtained the map in the record from the proper officers of the department; but the alleged fact is not satisfactorily proved. Four witnesses were examined by the claimant before the land commissioners, but only one of the number pretended that he had ever seen the grant, and his statements are quite too indefinite to be received as satisfactory proof.

Instead of proving possession under the grant, it is satisfactorily shown that he never occupied it at all; and it is doubtful if he ever saw the premises during the Mexican rule. Land commissioners rejected the claim, but before it came up for hearing in the District Court, his attorney had been appointed district attorney of the United States; and the proofs show that he conveyed two leagues of the land to the district attorney. Circumstances of the confirmation of the claim in the District Court are fully stated in the opinion of this court given when the mandate was revoked and recalled.^[*] Comment upon those circumstances is unnecessary, except to say that the confirmation was fraudulently obtained.

Although the decree was fraudulently obtained, still, inasmuch as it is correct in form, it is sufficient to sustain the appeal for the purpose of correcting the error. Party who procured it cannot be allowed to object to its validity as a means of perpetuating the fraud, especially as he did not appeal from the decree.

The decree of the District Court is therefore reversed, and the cause remanded, with directions to

DISMISS THE PETITION.

NOTES

[*] United States v. Gomez, 23 Howard, 326.

[*] United States v. Gomez, 1 Wallace, 698.

[*] United States v. Gomez, 1 Wallace, 698.

[†] Steamer Virginia v. West, 19 Howard, 182.

[‡] Castro v. United States, supra, 46.

[*] United States v. Booth, 21 Howard, 512.

[†] United States v. Gomez, 1 Wallace, 699.

[*] 12 Stat. at Large, 320.

[*] 12 Stat. at Large, 320.

[*] United States v. Gomez, 23 Howard, 339.