Cambuston v. United States

This is an appeal from the District Court of the United States for the District of California, in a proceeding under the 'Act to ascertain and settle the private land claims in the State of California,' passed March 3, 1851. 9 Stat. 631. The case was here at the December Term, 1857, when a former decree of the District Court was reversed, and the cause sent back for further hearing. United States v. Cambuston, 20 How, 59. The mandate was filed in the court below, May 5, 1859, and the further hearing resulted in a decree, Nov. 12, 1859, rejecting the claim. The court adjourned for the term on the first Monday in December, 1859, previous to which time no motion for a new trial or petition for rehearing had been filed. On the 24th of February, 1860, Lansing B. Mizner, as 'a party in interest,' filed with the clerk of the court a petition for rehearing. What his interest actually was nowhere appears in the record. A copy of this petition was served on the district attorney of the United States the same day the original was filed in the clerk's office; and, March 13, 1860, the district attorney and the attorney for the claimant entered into the following stipulation:–– 'It is hereby stipulated that Tully R. Wise, acting United States district attorney, waived written notice to him of a motion to be made for a new trial during the term of the United States District Court, ending the first Monday in December last, and that he considered a verbal notice of intention to move as sufficient to him, and then given to him, the said Wise. It is further stipulated, that, if the said Henry Cambuston now has the right to have the said motion heard, it shall not be prejudiced by delay until the return of the Hon. Ogden Hoffman.' Nothing further was done until April 2, 1875, when the widow of Cambuston–he having died Jan. 22, 1869–appeared in court and asked to 'be permitted to become the party claimant of the land,' as executrix of the will of her deceased husband, which had been admitted to probate May 3, 1869. An order to this effect was made April 3, 1875, and on the same day the claimant asked that a new trial be granted, and that the decree rejecting the claim might be reversed. The parties thereupon appeared, and, after hearing, the court denied the motion. On the same day, April 3, 1875, this appeal was allowed, both from the final decree and the order refusing a new trial. The United States now move to dismiss the appeal, because taken too late.