Bonds v. Hickman

By the Court, Rhodes, J. The attorneys of the parties appended to the transcript the following stipulation : “ It is hereby agreed that the foregoing is a true copy of the pleadings, the patent of the United States referred to therein, the minutes of the Court, and judgment in said case, and that the case be argued thereon. Notice of appeal admitted as duly filed and served, also the filing of appeal bond, insertion of copies waived.” The respondent moves that the appeal be dismissed on the ground that the Court had no jurisdiction of the case, because, as he alleges, no notice of appeal was filed. The motion is based on a certificate of the Clerk of the District Court, and an affidavit stating that in fact no notice of appeal was filed. In the counter affidavit filed by the appellant, it is not stated that a notice of appeal was filed; but he contends that the Court cannot go back of the stipulation—that the stipulation affords conclusive evidence that the notice was filed. Filing of notice of appeal indispensable to perfect an appeal. It is provided by section three hundred and thirty-three of the Practice Act, that “ a judgment or order in a civil action, except when expressly made final by this Act, may be reviewed as prescribed by this title, and not otherwise;” and section [463] three hundred and thirty-seven provides that an appeal shall be taken by filing with the Clerk of the Court in which the judgment or order is entered, a notice of appeal, and serving a copy thereof upon the adverse party or his attorney. That is the only mode prescribed by the Act in which an appeal to the Supreme Court can be taken. The filing of the notice of appeal is indispensable, in order to enable the appellate Court to obtain jurisdiction of the cause. (Hastings v. Halleck, 10 Cal. 31; Buffandeau v. Edmondson, 24 Cal. 94.) A waiver of the filing by the stipulation of the parties is not the equivalent of the filing of the notice, for consent, though it may waive error, cannot confer jurisdiction. (Coffin v. Tracy, 3 Caines, 129; Low v. Rice, 8 John. 409; Lindsay v. McClelland, 1 Bibb, 262; Ormsby v. Lynch, Litt. Selec. Cases, 303; Banks v. Fowler, 3 Litt. 332.) But this principle does not dispose of the difficulty in the case, for, admitting the necessity of the filing of the notice of appeal as an essential part of the proceedings by which the appellate Court acquires jurisdiction, the real question is what is competent evidence in this Court, to prove or disprove the filing of the notice. The notice itself, together with the official indorsement of its being filed, form a part of the record of the cause in the Court below, and neither of them have any place as original papers in the appellate Court. Causes brought before the Court by appeal are heard upon a transcript of the record of the Court below or a portion thereof, the transcript being made up and the documents of which it is composed being authenticated, before it reaches this Court. The evidence of the filing, as well as of the contents of the notice, constitutes an essential part of the transcript, for, as we have remarked, no provision being made for the filing of the notice in this Court, it cannot constitute a part of the record of this Court unless it appears in the transcript. A copy of the notice and the indorsement of its being filed, certified by the Clerk of the Court below, would, in the absence of a rule permitting a different mode of authentication, be the best evidence in this Court of the filing as well as of the con [464] tents of' the notice. The certificate of the attorneys of the respective parties is permitted by the statute to take the place of the official certificate of the Clerk, and parties may substitute a brief statement of the notice and its filing in the place of complete copies; but in whatever form they may appear and be authenticated in the transcript, they have the same value, and are entitled to the same effect as evidence, as if complete copies were certified to by the Clerk. We can see no ground upon which the copy certified to by the Clerk can be attacked by affidavits in this Court, that would not be equally available as a ground for attacking with the same weapons, the summons, judgment or any portion of the record found in the transcript. If the attorneys for the respective parties had inserted, in lieu of the summons and the Sheriff’s return of service, now found in the transcript, a brief statement showing that a summons in the usual form was issuqd and duly served upon the defendant, and if the defendant had in this Court offered his affidavit to show that -in truth the summons was not served, the question would be identical in substance with the one before us, and the solution of both would depend on the same principle, which is—that while the appellate Court may order a document to be inserted in or stricken from the transcript, in order to perfect the transcript, it possesses no authority to vary or amend the document itself. The principle announced in Buckman v. Whitney, 24 Cal. 267, appears to be decisive of the question under consideration. A stipulation in a transcript that notice of appeal was filed cannot he attached hy affidavits. If the stipulation was entered into by the respondent under a mistake of fact, as he alleges in his affidavit, and its operation was injurious to him, doubtless it was competent for the Court below, upon a proper application, to relieve him from it (Becker v. Lamont, 13 How. Pr. 23) as this Court might do, if a stipulation were entered into here under a mistake of fact; but this Court is powerless in the premises, and cannot amend the documents constituting the transcript, nor indi [465] rectly accomplish the same result by accepting as true a statement not found in the transcript, but which necessarily displaces a fact stated therein. While the stipulation remains, it affords sufficient evidence to this Court that the notice of appeal was filed in the Court below. United States patent. On the trial, the plaintiff offered in evidence the patent of the United States for the lands in controversy, which recited the location upon the lauds, by James Smith, administrator of Robert Smith, deceased, of a military land warrant, which had been assigned to Robert Smith; and which granted to “ James Smith, administrator of Robert Smith, deceased, as assignee as aforesaid, and to his heirs,” the lands described. The patent was signed: “ By the President, Abraham Lincoln. By W. P. Stoddard, Secretary.1’ The defendant objected to the patent on the following grounds: “First—That the said patent is void upon its face, and that it was located upon land on which it was not allowed to be located by law, under military bounty land warrants. Second—That it is void upon its face, as showing that it was issued to the administrator of a party deceased. Third—That it is not signed, nor does it purport to be signed, by the President.” Neither of the grounds of objection are, in our opinion, well taken. The patent is in the usual form of patents in case of the location by the assignee of a military land warrant, and contains nothing rendering it void on its face. Nor does it appear that the land granted was not subject to location under that class of warrants. We cannot hold it to be void because it was issued to the administrator of the deceased assignee of the warrant,, for it is not forbidden by law to be so issued in such cases. It is not shown upon the face of the patent that it was issued for land to which the deceased had the right of pre-emption; and if such was in truth the case, though not'recited in the patent, it is not liable to be attacked col [466] laterally on that ground. The last ground of objection is fully answered by Sec. 6 of the Act of Congress to reorganize the General Land Office (Brightly’s Dig. 463; Lester’s Land Laws, 47, Sec. 6), which provides that the President may appoint a Secretary, whose duty it shall be to sign in the President’s name all patents for land granted or sold under the authority of the United States. Judgment reversed and the cause remanded. Mr. Justice Sanderson expressed no opinion.