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December 1, 1859


Cases cited to sustain the above principles. THIS was an appeal from the District Court of the United States for the southern district of California. It was docketed and dismissed at the preceding term of the court, under the circumstances which will presently be briefly stated. The attention of the court was now called to the case by the following motions, namely: 1. A motion by the Attorney General, to vacate the order dismissing the cause, and to recall the mandate. 2. A motion by Gomez, for a mandamus to the District Court, to compel it to file the mandate, and to permit the execution of the decree of the District Court confirming the land claim. 3. A like motion by Gomez, for a like writ to compel the said District Court to dismiss proceedings before it on the part of the United States, which proceedings were an application to open the decree below and to grant a new trial. These two motions may be considered as one. 4. A motion for a mandamus to compel the surveyor general of California to survey the land confirmed to Gomez by the decree of the District Court. The history of the case is so fully given in the opinion of the court, that a very brief outline of it will be sufficient. On the 9th of February, 1853, Gomez, by P. Ord, his attorney, filed his petition before the board of land commissioners, praying the confirmation of his claim to a tract of land called Panoche Grande. On the 26th of March, 1855, the board decided against the claimant. An appeal was had to the District Court for the northern district of California, but upon representation made that the land claimed lay in the southern district, the transcript was sent to that court. The occurrences which took place there, and the manner in which an appeal found its way to this court from the decree of that court confirming the claim, are narrated in the opinion of this court. On the 31st day of January, 1859, a transcript of the record was filed in this court, and a motion made on the part of the claimant to docket and dismiss the cause, which motion was granted, and a mandate sent down to the court below. The mandate was, 'that this cause be, and the same is hereby, remanded to the said District Court. You, therefore, are hereby commanded that such proceedings be had in the said cause, as, according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.' On the 4th of May, 1859, a motion was made in the District Court, for leave to file the mandate and for leave to proceed under the decree. This motion was resisted by the district attorney, Mr. J. R. Gitchell, on the ground that no appeal had ever been taken by the United States in this case. The records of the court were offered in evidence, and Judge Ogier decided that it was satisfactorily proven to him that no such appeal had ever been taken. This was the posture of the case when the motions were made which are inserted in the previous part of this report. The following is the affidavit which is referred to and directed to be published in the opinion of the court. In the United States District Court for the southern district of California. Vicente P. Gomez ad. the United States: Pacificus Ord, late attorney of the United States for the southern district of California, being duly sworn, says: That at the June term, 1857, of the District Court of the United States for the southern district of California, held at Monterey, Isaac Hartman represented that he was a member of the law firm of Sloan & Hartman, authorized and retained as counsel for Vicente P. Gomez, in the above entitled cause. That he had as counsel for the said claimant obtained an order from the District Court of the northern district, removing the case to the southern district; and that he was ready and willing to present the same to the court, as soon as the same could be heard. Affiant further says, that shortly thereafter, the court being then in session, the said Hartman, acting as counsel for said claimant, presented the said case to the court by reading the petition for review, and the other papers and transcript in the case to the court, for the appellant. That after so doing, this affiant, acting for the United States, admitted, in open court, that in his opinion the claim was a valid one, and that, in accordance with the rulings of the court in previous cases, the case should be confirmed. That thereupon the court ordered that the decision of the land commissioners should be reversed, and a decree of confirmation entered therein for claimant. Affiant further says, that at the next term of the said District Court, held in Los Angeles, in December, the said Hartman, as counsel in said case, presented to affiant a draft of the decree of confirmation of said claim. That upon reading the same, affiant objected to the said draft, on the ground that the same would cover all the land embraced within the limits of the named boundaries, to the extent of eleven leagues. Whereupon the said Hartman made another draft of a decree, restricting the quantity of land to not more than four leagues; which said draft, after being approved by affiant as United States attorney, was signed by the court. That thereafter affiant drafted an order of appeal to the Supreme Court of the United States in said case, on the part of the United States; and on the last day of the term of said court, Col. Kewen, acting for the United States, at the request of affiant, district attorney as aforesaid, asked for and obtained, as affiant was afterwards informed, the said order in said case. Affiant further says, that at or about the time the said Hartman informed him that he had been retained by the said claimant in said case, affiant informed said Hartman that he had been the attorney for said Gomez before the United States land commissioners; and that, for his services therein, the said Gomez had conveyed to him the one undivided half of the tract of land claimed therein. That he had endeavored for a long time to get the Attorney General to appoint some attorney to represent the United States in cases in which he was interested, but without success. That this case had been unacted upon for a long time; and that as the commissioners had, upon the evidence before them, passed favorably upon the validity of the claim, and though they rejected it, it was only on the ground of want of occupation by the grantee; and that as that ground had been overruled by the Supreme Court, there could be no injury to the United States, and no impropriety on his part, as United States attorney, in appearing and consenting to its confirmation; in all of which views of this affiant the said Hartman then concurred. Affiant further says, that he wrote to the Attorney General of the United States shortly after assuming the duties of the office of district attorney, about December, 1854, stating that he had been employed as counsel, and was interested in several claims then pending on appeal in his district from the land commissioners, and requested that he would cause some attorney to be specially named to represent the United States in such cases. But the Attorney General never made or named any person to act in the matter, as requested. That affiant, being thus left to act in the matter as best he might, did act with the most scrupulous good faith, and to the best of his ability, for the United States, in all such cases. Affiant further says, that he has been informed and believes that the parties who are now and have been endeavoring to impede and defeat this claim, since the confirmation by the United States District Court, are private persons in possession of a valuable quicksilver mine, believed to be within the limits of said grant, lately opened and worked by them, of which one Daniel Gibb, of San Francisco, is believed to be the principal person interested. Affiant further says, that the substantial allegations in certain depositions of said Isaac Hartman and E. W. F. Sloan, dated December, 1859, in said case, are wholly untrue, except as herein admitted. And further affiant sayeth not. P. ORD. The case was argued by Mr. Black (Attorney General) in support of his motion, and by Mr. Johnson and Mr. Gillet against it. The reporter does not consider that the arguments upon these motions would be interesting to the profession generally, and therefore omits them.

The opinion of the court was delivered by: Mr. Justice Wayne delivered the opinion of the court.

This cause was docketed and dismissed in this court upon the motion of the appellee, and a mandate sent to the District Court from which the transcript of its record was obtained, for proceedings to be taken by that court to give to the complainant the benefit of its confirmation to the land in question.

The Attorney General now moves for the recision of the order of dismission, and that the mandate may be recalled.

He does so, alleging that no appeal had been granted to the United States in the court below by which the cause could be brought to this court for its revision; because there was then pending in the court below, when the claimant obtained the transcript, a motion for the review of the decree which had been given confirming the claimant's title; secondly, that the court had also under its advisement a motion concerning an appeal.

And the Attorney General further alleges, that the appeal from the decision of the board of land commissioners rejecting the petition, and also that the appeal from the District Court to this court, are fraudulent.

The charges as to the two first rest upon the records which the appellee presented to this court, to have the cause docketed and dismissed.

The Attorney General relies upon depositions and other papers which are on file in the District Court for southern California, and which have been transmitted to this court by Judge Ogier, to establish the charge of a fraudulent combination between the then district attorney of the United States, Pacificus Ord, Esquire, and the claimant of the land in controversy, and his assignees, to allow them to obtain from the District Court a reversal of the land commissioners' decree rejecting the claim.

W. C. Sims, the clerk of the District Court for the southern district of California, deposes that the document on file, giving notice that the claimant intended to prosecute an appeal from the decree of the board of land commissioners, is in the handwriting of Mr. Ord, with the exception of the figures No. 278 and the signature of E. O. Crosby.

The purpose for which this affidavit was made is, to show the interested connection between Mr. Ord and the claimant of the land, from the beginning of the institution of his suit to establish his right, and its influence upon the official conduct of Mr. Ord afterward, in every proceeding in the cause, after it had been removed from the northern district of California to the southern.

Mr. Ord was originally the attorney of Gomez before the board of land commissioners, and filed his petition there as such on the 9th February, 1853. He was not then district attorney, but he became so on the first of July, 1854, before the land commissioners decided the case against his client. After his appointment, and after an order had been obtained, at his instance, to remove the cause from the northern district of California to the southern, of which he was the district attorney, and whilst the cause was pending in the latter, he took from Gomez, for the nominal consideration of one dollar, a transfer to himself for one-half of the land in controversy. This Mr. Ord admits in his affidavit presented to this court by counsel. The conveyance to him bears date on the 24th of November, 1856. It was acknowledged on the same day by Gomez before a notary public of the county of San Francisco, and was, at the request of Mr. Ord, recorded in the county of Merced on the 26th November, 1857; was also filed for record in the county of Fresno on March 26th, 1858, and again recorded by Mr. Ord in Monterey county the 3d May, 1858. A copy of that conveyance is now before us. These dates show that no record of the conveyance to him was made until after the claim had been confirmed by the district judge, upon his representation that, as district attorney, there was no objection to its confirmation; in other words, that he thought the claim a valid claim, and was within the rulings of the court in other claims of the same kind.

We shall cite the notice in its words, for, as it had been in fact the subject of the court's action, and could not have been so without the knowledge of Mr. Ord, and without his agency, it devolves upon him the task to disprove the declarations of Mr. Hartman of the forgery of the name of the law firm of Hartman & Sloan to the paper. We ought to remark, however, that Mr. Sloan, of the firm, is not shown by any paper to have had any personal agency in the matter. The notice is: 'Now, on this day, came the parties, the appellant by Hartman & Sloan, and the appellee by P. Ord, United States district attorney: Whereupon, on motion of the attorney of the appellant, it is ordered that the transcript and papers transmitted from the northern District Court be filed in this court, and that the petition for a review of the same be entered thereon, and that the claimant have leave to proceed in said cause, the same as if it had been originally filed in this court.' On the same day, a petition was filed for a confirmation of the claim.

After the confirmation of it in the manner as will hereafter be stated, Mr. Sloan, upon being told of the motion, and that it was signed by the firm of Sloan & Hartman, but, in fact, as if the style of their firm was Hartman & Sloan, made his affidavit under a commission instituted by Judge Ogier, that neither as a member of the then firm of Sloan & Hartman, nor otherwise, was he ever retained or employed in the case; that he never wrote nor authorized to be written any petition or other paper in the case; that he never had seen such a petition; that he had never authorized any one to use his own name, or that of the firm of Sloan & Hartman, in the case; and that, if the paper was signed as it is represented to be, it had been without any consultation with him, or his consent or approbation.

The notice for a review of the decision of the board of land commissioners by the District Court, signed, as has been said, by E. O. Crosby, and wholly in the handwriting of Mr. Ord, was given after his connection as attorney for Gomez had ceased, and after he had become the half owner of the land. Mr. Crosby does not appear afterwards in the suit as the retained attorney of Gomez, nor does it appear in any other proceeding in the record of the case that he ever was so. It does not appear that Mr. Crosby was ever recognised by the land commissioners or by the District Court as the attorney of Gomez, from which we infer, as the notice was in the handwriting of Mr. Ord, that Mr. Crosby was his agent for the purpose of obtaining a review of the case in the District Court. Afterward, upon its being found out that the land in controversy was in the southern district of California, and not in the northern, a petition was filed for its removal to the southern district, which was granted.

At this point began those irregularities which, until explained, must leave an unfavorable impression in respect to Mr. Ord's discharge of his ...

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