Alviso v. United States (73 U.S. 457)

THIS was a motion to reinstate on the docket an appeal from the District Court for the Northern District of California, that had been dismissed at the last term.

The decree was rendered in the United States District Court for California, in favor of the United States, on the 8th September, 1863, and an appeal taken on the 23d February, 1864, returnable at the next term of the court, and the record brought up to this court and filed on the 11th November, 1864, which was in time. At the December Term, 1866, the cause was dismissed for want of a citation. The counsel for the appellant now produced evidence to show that a citation was, in fact, signed by the judge at the time of the allowance of the appeal, and duly served on the district attorney representing the United States, on the same day, and afterwards filed in the clerk's office. In July, 1866, the building in which the clerk's office was kept was partially destroyed by fire, which occasioned great confusion, and some loss of the records, and which embarrassed and delayed the appellant in procuring the evidence of the above facts, and in connection with the distance from the place where this court is held, sufficiently accounted, as the court said, for not making the motion at the last term.

Mr. J. H. Bradley, in support of the motion; Mr. Wills, contra.

Mr. Justice NELSON delivered the opinion of the court.