The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-05-18
UNITED STATES SUPREME COURT.

MauaAWus tO Compel Allowance 81 an Al.
peal-kMect Of Consent - Dismissal Of .
Ferner Appeal BY Relatsrs On the Appli-
casisn-Non-suit and Resraxit.
Rr pays< t Ussssd Stat pesitioass IN the saaer ef
ne Uwitsd States d. Pox-Tnis 10 motion for .
porcmptory nandamua . rule absolute compelling
the Judge Of tho Disrcs Court Tor the United States
for the Southern District Of CALIFORNIA; allow the ap
peal Of the Upiod States from decree rendered In The
above petition the llth Of April 1884, and 70 grant al
such legal orders may b. necessary 70 enable the gov
eminent bring such appeal regularly before This court
counsel for respondent having consented the issuance
Of The alternative order, and the being now ~
turnable IL appea thai D. Poll bad the ilth April
1861, obtained confirmation Il title aGainss the gov
eminent V consderable quantity OF Land In the county
Of Santa Basosra. csf0rosa from xAsch jndg.snt g
which WAS allowed, bus subsequently dismiased
second spplicnisn IVES denied y Dscsmbsr lsoI
nssi decree and ssrwsrds IN Ocsabsr 4 Ihas yssr.
% MOTION II The caimants with ~ 1onssns ~ 1hs
United sta.sa D.s.ss n:sssy esss We sss,s e. sss
other and dosssnt decree b The csse. The District
Attorney did Aol however. cosssAs 70 NE entering Of
Of August be - asads D alleged tbss = The decree
now stands the claimant gets nearly three times much
land = wss s~sIdsa 2 hin y zoe 81 az dScss re
this proceeding until September, 1885, The retain sets
forth thai appeal vas allowed N 1904 and that the
case was pa On calendar Of ths court IN $780, thai
such appeal Vas Afterwards dismissed BY Of
Attorney General This dismissal is sst up . bar y
further proceedings in the casA
The eoverpnsnt insists that Ne rule should now -
made absolute because the consent gwen BY the AoF
ney General the dism,ssal Of the appeal was not
reiraxl bot rather consent 70 noseuM for defect Of
form upon adverse motion Of The claimant Ararosd
h . voluntary proceeding; and nos-suit dinsn nom
. rcbwrn IN that The former N Deg0siasve whilst
ths latter positive The nonsait 10 mere fault and
neglect Of the plantn and therefore, be allowed 70
begin his suit again. upon payment "a costs but re-
trats sn open and voluntary renuntiaton OF hts suit
In cour and by this he forever his
suit dismissal Of the appeal for defects o. FORM ~as
all thai contemplated intended On either side by
the proceeding also argued that the rule must be
made absolute because the right Of appeal 10 matter
OF positive legal right and appellate trih
una This court is Of necssity tho supreme Judge Of
the question Of the existence or nonexstence OF the
night 81 appsa in any case otherwise u viii hold ~
pslate power n The will and pleasure Of its inferior
trbunal0 The right Of appeal still continues noiwth-
standing Abe lapse Of i've Year, from the date Of the
orguadecree Of confirmation because application has
aimee bean made within the i've years and Illegally re-
fused. This writ 10 an appropriate remedy 70 compel
tho allowance Of the right Of appeal in this case A
nandAmus will lie TO compel the performance Of judicial
scts nut the duty 20 perform them must be imperative
not Discretionary The duty Of the court below in this
case imperative. Mr. Ashton and Mr. Wilee for the
United siaas, J. Black for return Of dsirics Judge.