Castro v. United States
THE Judiciary Act of 1789 allows examination, by this court, of final judgments and decrees given in the circuits,  'upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party,' such party having a notice prescribed in the act. A subsequent act of 1803,  which gives an appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. But nothing is said, specifically, in either act, as to when the writ of error, the citation, or the record is to be returned to this court.
An act of March 3d, 1851,  to ascertain and settle private land claims in the State of California, authorizes, by its tenth section, the District Courts there to hear cases of a certain kind, and declares that after judgment they 'shall, on application of the party against whom judgment is rendered, grant an appeal to the Supreme Court of the United States on such security for costs in the District and Supreme Court as the said court shall prescribe.' But says nothing more on this subject.
Under this act of 1851, the District Court for the Northern District of California rendered a decree, on the 23d of November, 1859, in a case between Castro, claimant, and the United States. On the 24th of January, 1860, an appeal was granted, on motion by the United States. This appeal seems to have been dismissed; and on the 11th of November, 1864, an appeal was allowed, on the motion of the claimant, the then District Attorney of the United States being present in court. No citation was issued upon this appeal returnable to the next term of this court, nor was the record filed and the cause docketed during that term. On the 29th of May, 1865, however, a citation was issued, returnable at this term, and service of this citation was acknowledged by the present district attorney; and the writ was returned and the record filed at this term, under an agreement between the district attorney and the attorney for the claimants, to submit the cause upon printed briefs. This arrangement was subject to the approval of the attorney-general, who withheld his approval.
He now moved to dismiss the appeal.
Mr. Wills, representing the attorney-general, in support of the motion: It is true that the act of 1789 does not specifically say that the record, &c., is to be returned to the next term, but it does say so impliedly; and so this court have held. Thus, in Vilabolos v. United States,  they say: The writ of error is always returnable to the term of the appellate court next following the date of the writ; and the citation required by the act of 1789 (which is a summons to the opposite party to appear), must be returnable to the same term; and unless the writ and citation are both served before the term the case is not removed to the appellate court, and the writ, if returned afterwards, will be quashed. In United States v. Curry,  the court, referring to Vilabolos v. United States, said: 'The court, in that case, held that the appellant must prosecute his appeal to the next succeeding term;' and in a case long after either, -referring to the two cases just cited-they declare: 'The construction of this act of Congress and the practice of this court under it has been settled.'
This settled practice of the court, under the early acts, must be held to regulate an enactment in pari materi a; and such seems to have been the view of the court as it is to be gathered from the very curtly stated case of Mesa v. United States. 
Mr. Stewart, contra: The objection is technical, and rests on a matter of form only. There is nothing specific in any act which would cause this case to be dismissed for laches; and nothing assuredly of any kind in the act under which the appeal is taken. If there was irregularity, it is waived by the admitted presence and presumable assent of the district attorney; with his confessed acknowledgment of notice.
Reply: The question is not one of form, but is one of substance; of jurisdiction itself. Nothing that the district attorney did or could do, or that the attorney-general himself could, would give competence to the court, if under the acts of Congress the court has it not.
The CHIEF JUSTICE delivered the opinion of the court:
^1 Act of September 24, 1789, ch. 20, § 22; 1 Stat. at Large, 84.
^2 Act of March 3, 1803, ch. 40, § 2, 2 Id. 244.
^3 Ch. 41; 9 Id. 633.
^4 6 Howard, 81.
^5 Id. 112.
^6 Brown v. Duchesne, 19 Id. 183.
^7 2 Black, 721.