$470. Preparation for appeals.- Practice after the decree is rendered to determine whether the United States shall take an appeal or not is determined by section nine of the act. In every case where a claim is confirmed by this court, the attorney for the United States is required to submit to the AttorneyGeneral within sixty days next after the rendition of the judg ment, a statement of the case and the points decided by the court, verified by the certificate of the presiding judge. If this statement is not submitted within the time mentioned, the United States continues to have a right of appeal "until six months next after the receipt of such statement." The Attorney-General may require the clerk of the court to transmit the record of any case in which final judgment has been rendered, for his examination, and it is his duty to instruct the attorney for the United States whether to take an appeal or not.1 471. Practice when no appeal is taken. It is the duty of the clerk of the court to certify to the Commissioner of the General Land Office final decisions, with a copy of the decree of confirmation. The commissioner then, by the SurveyorGeneral of the State or Territory in which the land lies, surveys the tract confirmed, at the expense of the United States. It is then the duty of the Surveyor-General, upon the return of the survey and the plat thereof to his office, to give notice of this survey by publication in Spanish and English once a week for U. S. v. Halleck, 1 Wall. 439: Lynch v. Bernal, 9 Wall. 315. A decree of confirmation on which an appeal is pending will not prevail in ejectment against a legal title under a patent. Greer v. Mezes, 24 How. 268; Singleton v. Touchard, 1 Black, 342. A decree obtained by fraud is sufficient to sustain an appeal if correct in form. U. S. v. Gomez, 3 Wall. 752. A decree directing the issuance of a second patent for a part of land previously granted is a nullity. U. S. v. Covilland, 1 Black, 339. The decree must control the survey. Castro v. Hendricks, 23 How. 438; U. S. v. Halleck, 1 Wall. 439; Fossat Case, 2 Wall. 649. A decree of the District Court may be amended, "A con on motion, by the Supreme Court. § 470. 126 St. at L. 854, § 9. four consecutive weeks in two newspapers, one published at the capital of the State or Territory, and the other near the land surveyed. This survey and plat must be open for public inspection for ninety days after the first publication of the above notice, at the office of the Surveyor-General. If at the expiration of this time no objection to the survey has been filed, the Surveyor-General approves it, and forwards it to the Commissioner of the General Land Office, whose duty it is to transmit the survey with all the accompanying papers to the court which made the final decision. The court after an examination of these papers must determine whether the survey is in accordance with its decree of confirmation, and, if so, the court directs its clerk to indorse its approval upon the face of the plat. If the survey is incorrect, the court returns it directing in what particulars it shall be corrected. When the survey is finally approved it is forwarded to the Commissioner of the General Land Office to issue a patent thereon to the confirmee in accordance with the decree and survey.1 Any party in interest may, during the ninety days that the survey and plat are at the office of the Surveyor-General, file his written objections thereto, stating "distinctly the interest of the objector and the grounds of his objection, and signed by him or his attorney," accompanied by such affidavits or proofs in support of his objections as he may produce, which objections and proof are forwarded with the survey without the approval of the Surveyor-General, to be transmitted, by the Commissioner of the General Land Office, with the other papers relating to the survey, to the court in which the final decision was made, for its consideration and determination, in the same manner as if no objections had been filed.2 Although the United States in the first instance pays the cost of the survey, it is provided that one-half of this expense shall be paid by the claimant, and this is a lien on the land until paid. If payment is not made within six months after the approval of the survey, enough of the land may be sold to satisfy the lien, and until this payment is made no patent shall be issued for the land.3 § 471. 126 St. at L. 854, ch. 539, § 10. 2 26 St. at L. 854, § 10. 328 St. at L. 854, § 10. § 472. Appeals.- Either party dissatisfied with a decision of this court has the right of appeal to the Supreme Court of the United States. This appeal must be taken within six months of the date of the decision, and in accordance with the practice of taking appeals from decisions of the Circuit Courts of the United States, except that the limitation in respect to the amount in controversy is removed. In the absence of an appeal taken as provided in this act, the decree of this court is final and conclusive. When an appeal is taken from the decision of this private land court, the Supreme Court retries the whole case, the issues of fact as well as of law. It may causé testimony to be taken in addition to that given in the court below; it may amend the record of the proceedings below; and on such retrial and hearing every question is open for its investigation and determination, and its decision is final and conclusive of all the questions involved. § 472. 126 St. at L. 854, §§ 9, 14. This part of the statute is constitutional. U. S. v. Coe, 155 U. S. 76. 226 St. at L. 854, § 14; U. S. v. Pena, 175 U. S. 500. 8 26 St. at L. 854, § 9. 4 26 St. at L. 854, § 9. 526 St. at L. 854, § 9. This section of the statute is permissive and not mandatory. U. S. v. Coe, 155 U. S. 76. The United States can appeal even where it has no interest in the result of the litigation. U. S. v. Conway, 175 U. S. 60, 69. Under former acts decisions as to appeals were as follows: Under the act of 1851 the Supreme Court had appellate jurisdiction over the California Land Commissioners and the District Courts. U. S. v. Castillero, 2 Black, 17. Appeals under the act of 1851 were subject to the regular judiciary acts of 1789 and 1803, and were to be prosecuted to the first succeeding term after their allow ance. Castro v. U. S., 3 Wall. 46: Mesa v. U. S., 2 Black, 721. In the absence of an appeal the decision of the Dis trict Court of California was final between the United States and claimants. Higueras v. U. S., 5 Wall. 827. When the validity of a grant is affirmed, and an appeal is taken by the claimant alone, to modify the decree as to quantity, the validity of the grant is not open to review. Malarin v. U. S., 1 Wall. 282. An appeal must be prosecuted in the manner and within the time directed by Congress, and if not, it will be dismissed. Mesa v. U. S., 2 Black, 721. Where the act directs that a notice of intention to appeal shall be filed within six months, it must be complied with strictly. Such direction is mandatory, and leaves the court no discretion, as in the case of its own rule. Yturbide's Ex'rs v. U. S., 22 How. 290. A citation of the adverse party, with due return or waiver, by general appearance or otherwise, is indispensable to jurisdiction on appeal. Alviso v. U. S., 5 Wall. 824. Appeals from decrees of confirmation should not come up as on bills of exceptions to evidence, but objections should be taken in the court below to the sufficiency of proof of execu tion. U. S. v. Johnson, 1 Wall. 326; U. S. v. Yorba, 1 Wall. 412; U. S. v. case. Auguisola, 1 Wall. 352. An appeal to the District Court of California from the commissioners was an original proceeding which opened the whole U. S. v. Ritchie, 17 How. 525; Grisar v. McDowell, 6 Wall. 363. An appeal from the District Court to the Supreme Court suspends the operation and effect of the decree, only when by a judgment of the Supreme Court the claim of the confirmee might be defeated. Grisar v. McDowell, 6 Wall. 363. The United States cannot object to the correctness of a boundary line in an approved survey where it has not appealed from the approving decree. Alviso v. U. S., 8 Wall. 337. An erroneous decree as to title or boundaries can only be corrected by an appeal. U. S. v. Billing, 2 Wall. 444. There is no appeal from any order or decision of the lower court which is not final. U. S. v. Fossatt, 21 How. 445. In the absence of specific regulations, appeals are subject to the Rule 63 of the Supreme Court. U. S. v. Pacheco, 20 How. 261. Where a petition for an appeal is improp erly denied, a mandamus is the proper remedy. U. S. v. Gomez, 3 Wall. 752. See supra, §§ 363, 364. A notice of appeal was necessary. Beard v. Federy, 3 Wall. 478. appeal from a decision by the United States Circuit Court to the Supreme Court was allowed when the Circuit Court had improperly assumed juris diction, as the appeal should have been from the District Court directly to the Supreme Court. U. S. v. Circuit Judges, 3 Wall. 673. Proceedings on appeal are subject to exceptions. U. S. v. Gomez, 3 Wall. 752. An Parties who have not appeared below cannot be heard for the first time in the Supreme Court in opposition to a survey. U. S. v. Estudillo, 1 Wall. 710. Intervenors who are parties to the record may be heard on appeal. U. S. v. Fossat, 20 How. 413; U. S. v. White, 23 How. 249; U. S. v. Estudillo, 1 Wall. 710. A dismissal will not be vacated upon the application of parties not of record. U. S. v. Estudillo, 1 Wall. 710. The Supreme Court may remand a case where the jurisdiction is not apparent, and for the purpose of correcting any necessary matter of form or substance. Cervantes v. U. S., 16 How. 619; U. S. v. White, 23 How. 249. An appeal will be dismissed when the United States is not a party in interest, U. S. v. White, 23 How. 249; or when not taken in accordance with the act. U. S. v. Morillo, 1 Wall. 706. Want of jurisdiction may be reviewed by Supreme Court on appeal. Yturbide's Ex'rs v. U. S., 22 How. 290. The court may set aside and annul, or correct and modify a survey, and to such order and decree the parties may except and appeal therefrom. Such appeal, however, does not open the decree of confirmation, as upon that the survey is based. Maguire v. Tyler, 8 Wall. 650. An appeal may be taken from a decree annulling, correcting, or modifying a survey. Higueras v. U. S., 5 Wall. 827. The decree of the District Court on a survey was final unless an appeal was taken, U. S. v. Billing, 2 Wall. 444, and conclusive on title and boundary. U. S. v. Halleck, 1 Wall. 439; Lynch v. Bernal, 9 Wall. 315. CHAPTER XXXIII. BANKRUPTCY. § 474. Courts of bankruptcy and their jurisdiction.-Original jurisdiction in bankruptcy is vested in the District Courts of the United States in the several States,' the Supreme Court of the District of Columbia,' the District Courts of the several Territories, the United States Courts in the Indian Territory and the District of Alaska, the District Court of Porto Rico, and the District Court of Hawaii; all of which are courts of bankruptcy. The Bankruptcy Act expressly invests them, "within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they are now or may be hereafter held, to (1) adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States, but have property within their jurisdiction, or who have been adjudged bankrupts by courts of competent jurisdiction without the United States and have property within their jurisdictions; (2) allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates; (3) appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is quali d; (4) arraign, try, and § 474. 130 St. at L. 544, 545, § 2. 2 Ibid. 3 Ibid. 531 St. at L. 84. 6 31 St. at L. 158. 730 St. at L. 544, 545, § 2. 4 Ibid. |