Jose Argote Villabolos, Marie Rose, and Francois Felix, Marquis de Fougeres, Appellants, v. The United States, 6 How. 81

Mr. Chief Justice TANEY delivered the opinion of the court. This is an appeal from the Superior Court of East Florida. It appears that on the 18th of April, 1829, a petition was filed by the appellants in the Superior Court, claiming title to certain lands under a Spanish grant. The’ district attorney answered, denying the validity of the claim,, and testimony was taken on both sides, and the case proceeded to final hearing. And on the 10th of September, 1838, the court decreed that the claim was not valid, and that it be rejected.

No appeal was. taken at the time, but afterwards, on the 25th of November, in the same year, an appeal was filed in the clerk’s office by the solicitor for the appellants. No citation, however, issued, nor was any further step taken in this appeal until August 9, 1844, when a citation issued, signed by the clerk of the Superior Court, which, on the 13th of the same month was served on the district attorney. And under this appeal and citation the record was filed by the appellants in this court, on the 12th day of December, 1844.

A motion has been made on the part of the United States to dismiss this case,.— 1st, upon the ground that the citation is not signed by the judge .; and 2d, that the appeal was not taken within the time limited by law. The proceedings in the Superior Court of Florida were' had under the act of Congress of May 23, 1828. It has been urged in the argument for the appellant, that appeals to this court in such cases are not governed by the acts of 1789 and 1803, and may be brought up by a citation signed by the clerk.

And it was suggested that such has been the usual mode of prosecuting appeals from the Superior Court of Florida, and sanctioned by the practice of this court. With a view of ascertaining the practice upon this subject, we have caused the records in former cases to be examined; but no case has been discovered in which the appeal was taken in the clerk’s office, and the citation signed by the clerk. So far as the examination extended, all of the cases wére .brought here by appeals taken in open court.

And if there are ,any cases like the present in which this court has treated the appeal as valid, they must have passed sub silentio and without having .attracted, in this, respect,- the- attention of the court. It is true, that, in all of the former cases from the Superior Court of Florida, the citation appears to have been signed by the clerk. But as. they were taken in open court, no citation was necessary under the acts of 1789 and 1803. It was so held in . the . casé of Yeaton v. Lenox, 7 Peters, 220.

And these appeals were therefore regtilarly before the court, according to the last-mentioned acts of Congress, — the citations signed by the clerk being altogether unnecessary and unimportant. The question is, , therefore, now for the first time presented, whether such a citation is sufficient where the appeal is entered in the clerk’s office, and not taken in open court.. The laws of. Congress upon this subject are, unfortunately, a good deal complicated. But the view taken in the argument of the Attorney-General is undoubtedly the correct one. The sixth

section of the act of 1828 provides that the proceedings in the Superior Court of Florida shall be according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed* to the district judge and claimants in the State of Missouri by the act of May 26, 1824; and the seventh

section provides that the claimant may take an appeal as directed in the act aforesaid to the Supreme Court within four months after the decision shall- be pronounced. The District Court of Missouri, to which' the above-mentioned act of 1824 refers, was established by the act of March 16, 1822, and the second

section of this act provides that it 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. act of March 2, 1793. And the tenth

section of the last-mentioned act directs that writs of error and appeals shall lie from the decisions of the District Court of. Kentucky to the Supreme Court in the same causes as from a Circuit Court, and under the same regulations.

Thus, in order to determine how appeals must be prosecuted from the Superior Court of Florida, under the act of 1828, we are in the first place referred to the . law in relation to the District Court in the State of Missouri, and- that law refers us again to the act in-relation to the District Court of Kentucky, and that law in. express terms refers 'us t.o the laws regulating appeals from a Circuit Court of the United States, — that is to say, to the acts of 1789 and 1803.

Appeals from the Superior Court of the Territory of Florida, therefore, are governed by these acts; and consequently the case of -The United States v. Hodge, 3 Howard, 534, is decisive against the present appeal. When the appeal is not made in open court, Snd at the term at-which the final decree is. passed, a bitatioh is necessary; The San Pedro, 2 Wheat. 142; and where necessary, the law requires it to-be signed by the judge ; and we have no power to receive an appeal in any othr er mode than that provided by law. But if the citation had been properly signed, it is too late.

By the act of 1828, the claimant must appeal within four months'; and the act of 1803 subjects appeals to the rules and regulations prescribed' by law in cases of writs of error. Now the -writ-of errords always returnable to the term of the appellate court next following the date of the writ; and the citation required by the act of 1.789 (which is a summons to the opposite party to appear) must be returnable to the same term, and unless the writ and citation are both served before the term, the case is not removed to the appellate court, and the writ, if returned afterwards, will be quashed. Lloyd v.

Alexander, 1 Cranch, 365; Bailiff v. Tipping, 2 Cranch, 406; Wood v. Lide, 4. Cranch, 180 ; Pickett’s heirs v. Legerwood, 7 Peters, 144 ; and Yeaton v. Lenox and others, 8 Peters, 123. It follows that, where a citation is required in a case of appeal, it must, as in the writ of error, be issued and served on the opposite party before the term, of the appellate court , next after the appeal is entered. Yeaton v. Lenox, 7 Peters, 220.

The entry of the appeal in the clerk’s office is analogous' to the issuing, a writ of error; it is returnable to the next term of the appellate court; and a citation to the opposite, party to appear is necessary. Here the entry of appeal was made in the clerk’s office within four months from'the date of t]ie decree, and therefore within the time limited -by law. The-citation might, upon such an entry, have been issued after the.expiration of the four months. But it must be issued and served before the term of this court next succeeding the entry of the appeal.

And unless this is done, the case is not brought before this court. There was no such citation in the present case, and the entry in the clerk’s office, standing by itself, was not a removal of the case by appeal, according to the act of Congress. There was, therefore, no appeal within the time limited by law. The construction of the act of 1828 contended for by the appellant would defeat its evident policy and intention.

It was the object of the law to obtain a speedy settlement in the judicial tribunals of claims made under Spanish titles, many, of which were disputed by the United States, as unfounded or fraudulent. This is manifest from the whole scope of the law; and provisions are introducéd for the purpose of compelling the claimants to prosecute their claims to'final judgment without any unnecessary delay. And it was to accomplish this object, that, instead of limiting the time for appealing to the Supreme Court to five years, as in the act of 1803-, it is reduced to four months.

But if this appeal can be maintained, there is no limitation in cases of this kind. For here, after filing his appeal in the clerk’s office, it has been suffered to remain there for nearly six years, without any citation to notify the district attorney that an appeal had been prayed, or taking any step to prosecute it. This entry without a citation was a mere nullity. Upon both of the' grounds, therefore, above stated, the appeal must be dismissed. Order. .

This cause came on to be heard on the transcript of the record from the Superior Court of the District of East Florida, and it appearing to the court here that this appeal is barred by the lapse of time, and that the citation is not signed as directed by the act of Congress, it is therefore now here considered and decreed by this court, that this cause be and the same is hereby dismissed, and that this cause be and the same is hereby remanded to the said Superior Court, to be proceeded in according to law and justice!