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JOS E ARGOTE VILLABOLOS, MARIE ROSE, AND FRANCOIS FELIX, MARQUIS DE FOUGERES, APPELLANTS, v. THE UNITED STATES.

January 1, 1848

JOS E ARGOTE VILLABOLOS, MARIE ROSE, AND FRANCOIS FELIX, MARQUIS DE FOUGERES, APPELLANTS,
v.
THE UNITED STATES.



THIS was an appeal from the Superior Court of East Florida.

The case being dismissed for want of jurisdiction, it is unnecessary to do more than refer to the circumstances, which are fully stated in the opinion of the court.

Mr. Mason, then Attorney-General, had moved at a preceding term to dismiss this case, upon the ground of its being irregularly brought up.

It was now argued by Mr. Clifford, Attorney-General, for the motion, and Mr. Yulee, against it.

Mr. Clifford, for the motion.

The points relied on by the United States for dismissal of the appeal in this case are,––

1st. That there is no citation issued according to law; the citation in the record being signed by the clerk of the Superior Court of East Florida instead of the judge, in pursuance of the twenty-second section of the Judiciary Act.

2d. That there is no allowance of the appeal.

1st. The counsel of the appellants contends, that the citation is signed according to the practice of the Territorial courts of Florida, which must govern this question. It is, however, submitted, that the practice of these courts does not afford the rule to govern appeals in land cases under the special jurisdiction, with respect to them, conferred on the judge of the Superior Court of East Florida.

A slight examination of the acts of Congress on the subject will satisfactorily demonstrate this proposition.

By the sixth section of the act of the 23d May, 1828 (4 Statutes at Large, 284), it is provided, that certain claims to land within the Territory of Florida shall be received and adjudicated by the judge of the Superior Court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge and claimants in the State of Missouri, by act of Congress, approved 26th May, 1824, entitled 'An act enabling the claimants to lands within the limits of the State of Missouri, and Territory of Arkansas, to institute proceedings to try the validity of their claims.'

And by the seventh section it is enacted, that it shall be lawful for the claimants to land as aforesaid to take an appeal, as directed in the act aforesaid, from the decision of the judge of the district to the Supreme Court of the United States, within four months after the decision shall be pronounced.

And by the twelfth section it is enacted, that the petitions were to be filed within one year from the passage of the act; and if, on account of the neglect or delay of the claimant, they should not be prosecuted to a final decision within two years, they were for ever barred both at law and in equity.

A subsequent act was passed on the 26th May, 1830 (4 Statutes at Large, 406), which, by its fourth section, in effect revived the act of 1828.

It was, however, under the act of 1828 that the petition in this case was filed; and it is clear, beyond all controversy, that the forms of proceeding were to be the same as those prescribed to the district judge and claimants in the State of Missouri, by the act of 1824, hereinafter mentioned.

The act of 1824 (4 Statutes at Large, 52), the rules of proceeding under which were made the rules of proceeding in the Florida cases, by its first section enacts, that it should be lawful for any person claiming lands in the State of Missouri, by virtue of any French or Spanish grant, concession, warrant, or order of survey, 'to persent a petition to the District Court of Missouri,' setting forth their claims. The second section provides, that the proceedings are to be conducted according to the rules of a court of equity, and that 'in all cases the party against whom the judgment or decree of the 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; and should no appeal beAt the time this act passed, the State of Missouri was not embraced within any circuit; but the federal jurisdiction was exercised by the district judge, under the act of the 16th March, 1822 (3 Statutes at Large, 653), entitled 'An act to provide for the due execution of the laws of the United States within the State of Missouri, and for the establishment of a District Court therein.' By the second section, the State of Missouri was created a district, with one judge, to be called the district judge, who should 'in all things have and exercise the same jurisdiction and powers which were by law given to the judge of the Kentucky district' under the Judiciary Act and the act of the 2d March, 1793, being the act in addition to the Judiciary Act.

The tenth section of the Judiciary Act (1 Statutes at Large, 77) prescribes the mode in which appeals were to be taken from the District Court of Kentucky to the Supreme Court, as follows:–'And writs of error and appeals shall lie from decisions therein to the Supreme Court, in the same causes as from a Circuit Court to the Supreme Court, and under the same regulations.'

It is clear, therefore, that citations, in the case of appeals from the District Court of Kentucky, were subject to the rules prescribed by the twenty-second section of the Judiciary Act; that the rules applicable to Kentucky were adopted for Missouri; and that the judge of the Superior Court of Florida was to adjudge these land cases according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge and claimants in Missouri. The legislation of Congress on the subject is plain and distinct, as it seems to me, and the local practice of Florida has nothing to do with the question, and furnishes no guide whatever to regulate the proceedings.

It therefore appears to me that the case of the United States v. Hodge, 3 Howard, 534, is directly in point.

2d. No appeal was taken in open court at the term when the decree was made rejecting the claim, or at any other time. The claim was rejected 10th September, 1838. On the 25th November following, the solicitor of the appellants filed in the clerk's office a notice of appeal, but no allowance thereof was ever made.

It is insisted that a notice thus filed in the clerk's office, unaccompanied by any other act of the party, and without the knowledge either of the opposing party or of the court, and without any approval by the judge before whom the cause was tried, cannot be regarded as an appeal effectually taken. It carry up the case for revision. It is not denied that the right of appeal, when claimed in open court during the term when the cause was tried, is an absolute right, and one which the court has no power to deny; but when subsequently claimed in vacation, it must be approved or allowed by the court, otherwise it might be resorted to for purposes merely wanton, or for delay, and would operate as a surprise upon the opposite party. Yeaton v. Lenox, 7 Peters, 220.

The appeal, under the circumstances of this case, was not prosecuted in due time, but must be considered as having been abandoned before the citation was issued.

It is reasonable to conclude, after a delay of more than five years, that the party had waived any right which he acquired by filing the notice of appeal in the office of the clerk of the court. Whatever may be the effect of a notice thus filed, it cannot remain available indefinitely. The appeal must be claimed and allowed within the time prescribed by law. The mere filing of the notice within the time allowed to take the appeal is insufficient to secure the right, unless the appeal be perfected within a reasonable time. The delay of more than five years raises the presumption that the right to appeal had been abandoned, or waived, before the citation was issued, or that the notice was not filed in good faith.

If the party may assert the right in this case, after more than five years have elapsed since the notice was filed, when would the right to prosecute the appeal cease? The practice, if sustained, would introduce great looseness into legal proceedings, and create confusion and uncertainty in the rights of property over which such a notice of appeal was permitted to hang. It is often the main purpose of an appeal to secure a new trial, which it is always desirable to have during the lifetime of the witnesses who testified in the court below. If this practice be sustained, a party ...


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