Executors of De Yturbide v. United States

THIS was an appeal from the District Court of the United States for the northern district of California.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Blair for the appellants, and by Mr. Stanton for the United States.

Mr. Blair thus noticed the point upon which the case turned:

1. The District Court dismissed the appeal, on the ground that its own order, allowing the notice of appeal to be filed nunc pro tunc, was void.

I contend that this order was not invalid. The language of the statute, that 'the appeal shall be considered as dismissed' in case the notice is not filed as required, is directory merely. It prescribes a rule as to the time of filing a paper in the progress of a cause; and such rules are directory merely, and are never construed to prohibit the filing of the papers after the time limited, and before the adverse party has taken advantage of the omission.

O'Hara v. Nieury, 1 Sand. Sup. Ct., 655.

Cook v. Forrest, 18 Ill., 581.

Wood v. Fobes, 5 Cal., 62.

1 Barb., 478.

3 Rich., 60.

9 Alabama, 399.

1 Brevard, 203.

The suit was instituted, and notice given of its pendency to the United States, by filing the transcript from the record of the board of commissioners.

United States v. Ritchie, 17 Howard, 334.

And in this case the United States was in default on this very point, it not appearing that the Attorney General has filed the notice in time.

The court, being thus possessed of a cause which it was required to dispose of on the principles of equity, was authorized to permit a proceeding required in the subsequent progress of the cause to be taken nunc pro tunc for good cause, and in aid of the ends of justice. That proceeding was altogether formal, and occasioned no surprise or injury to the adverse party; and it would be against the whole spirit of the act, which required the courts to deal with the rights of the claimants according to the principles of equity, as well as against the ordinary rules of practice, to hold that the order in relation to it was void.

Mr. Stanton contended that the act of Congress was peremptory, and admitted of no discretion in the court below.

Mr. Justice McLEAN delivered the opinion of the court.