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Opinion of the Court.

Waite in Bostwick v. Brinkerhoff, 106 U. S. 3, "must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered."

And in McLish v. Roff, 141 U. S. 661, 665, it was observed by Mr. Justice Lamar: "From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error, (with the single exception of the provision in the act of 1875 in relation to cases of removal, which was repealed by the act of 1887,) have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.”

The Circuit Courts of Appeals are governed by the same principles.

Unquestionably it is the general rule that after the expiration of the term all final judgments, decrees or other final orders of the court thereat rendered and entered of record, pass beyond its control unless steps be taken during that term by motion or otherwise, to set aside, modify or correct them. Hickman v. Fort Scott, 141 U. S. 415. But this motion for new trial was filed in due course and in apt time during the term at which the verdict was returned and judgment rendered, and this being so, the case came within the exception.

It is true that a writ of error does not lie from this court or the Courts of Appeals to review an order denying a motion for a new trial, nor can error be assigned on such an order because the disposition of the motion is discretionary; but the court below while such a motion is pending has not lost its jurisdiction over the case, and, having power to grant the motion, the judgment is not final for the purpose of taking out the writ. The effect of a judgment, entered at once on the return of the verdict, in other respects is not open for consideration. The question before us is merely whether a judg ment is final so that the jurisdiction of the appellate court may be invoked while it is still under the control of the trial court through the pendency of a motion for new trial. We

Statement of the Case.

do not think it is, and are of opinion that the limitation did not commence to run in this case until the motion for new trial was overruled.

The judgment of the Circuit Court of Appeals is reversed and the cause remanded for further proceedings.

UNITED STATES v. COE.

APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS.

No. 8. Argued March 14, 15, 1898. - -Decided May 23, 1898.

After a careful examination of all the acts of the Mexican authorities upon which the appellee claims that his title to the grant in question in this case is founded, the court arrives at the conclusion that the officers who made the grant had no power to make it; and the decree of the Court of Private Land Claims establishing it is reversed, and the case is remanded for further proceedings.

THIS suit was originally instituted February 2, 1892, by the Algodones Land Company, under provisions of an act entitled "An act to establish a Court of Private Land Claims and to provide for the settlement of private land claims in certain States and Territories," approved March 3, 1891, c. 539, 26 Stat. 851.

Pending the litigation, the Algodones Land Company conveyed the property to Earl B. Coe, and upon motion the action was revived in his name.

The basis of the claim is an alleged grant, which shows: That one Fernando Rodriguez, on January 4, 1838, at Hermosillo, presented a petition to the treasurer general of the state of Sonora, Mexico, stating that he had sufficient means to settle and cultivate a tract of vacant desert land, on the northern frontier of the state, situated between the Colorado and Gila rivers, said lands including the tract from the southern side. of the Gila River, in front of the junction of the same with the Colorado River, as far as the crossing (paso) of the Algodones,

Statement of the Case.

and from said point following the eastern margin of the Colorado River as far as the junction of the same with the Gila, a distance of five leagues.

"Wherefore, in the name of the sovereign authority of the state," he formally registered the same and asked that a person be appointed to make the measurements and valuation and the necessary publications, "as required by law."

He also offered at the proper time to furnish satisfactory evidence as to his ability to pay the just taxes (derecho) into the public treasury

"It being understood, señor treasurer, that the registry that I now make is under the condition that the settlement and occupation of the said vacant lands by me shall be when the notorious condition and circumstances of the region of the country in which said lands are situated may permit the same to be done; since the said vacant lands are situated in a country desert and uninhabitable on account of the hostility of savages; it being well known that a settlement made by the Spanish government in the desert country of Colorado was entirely destroyed in a short time by the Yuma Indians and other savages, etc."

Thereupon a commissioner was appointed by the treasurer general, who was directed to ascertain whether the grant would conflict with the rights of any other parties; also to survey and appraise the lands and offer the same for sale under the provisions of certain designated laws of the state.

This commissioner, in the performance of the duties assigned him, caused the land to be appraised and surveyed, and thereafter offered the same for sale at public outcry on each day for thirty consecutive days.

In his petition Rodriguez offered to pay for the land the amount at which it should be appraised, and no other person having bid at any of the public offers, the record of the proceedings was returned to the treasurer general for final action. That officer thereupon referred the matter to the promoter fiscal of the public treasury, who upon a review of the proceedings, declared that Rodriguez ought to be admitted to a composition with the treasury of the state for said lands, and

Statement of the Case.

recommended that three public offers be made, closing his report with the following language:

"This is the report of the undersigned fiscal. Your honor (the treasurer general) will do what is proper in the premises." The treasurer general thereupon ordered that three public offers of sale be made of said lands in the manner established by law. The "junta de almoneda," or board of sale, thereupon proceeded to make three public offers of sale on consecutive days, and on the third offer declared Rodriguez to be the purchaser.

Thereafter the treasurer general executed a formal instrument in writing, in which, after referring to the proceedings thereto had, he recites as follows:

"Wherefore in the exercise of the faculties conceded to me by the laws, decrees and regulations and the superior existing orders in relation to lands, by these presents, and in the name of the free, independent sovereign state of Sonora, as well as that of the august Mexican nation, I concede and confer upon, in due form of law, the Señor Don Fernando Rodriguez,

"The five square leagues, and adjudicate the same to him under the conditions which have been admitted as equitable and just by interested party, the Señor Don Fernando Rodriguez, that is, that he shall settle and cultivate said lands so soon as the circumstances surrounding that distant and desert portion of the state may permit him to do so, in view of the imminent risk and danger there is on account of the savages, but when the said lands shall once be settled and cultivated, they shall be kept in condition, and that they shall not be unoccupied and abandoned for any time; and if the same shall be abandoned for the space of three consecutive years, and any one else denounce said lands, in that event, after the necessary proceedings, they shall be adjudicated anew to the highest bidder; excepting as is just, those years in which the abandonment was occasioned by the invasion of the enemies, and this only for the time that this condition of things exists," etc.

The "junta de almoneda," or board of sale, consisted of

Opinion of the Court.

certain officers, among whom was the treasurer general. The powers of the board with reference to the sale of public lands were conferred and defined by the laws of the central Mexican government.

Mr. Matthew G. Reynolds, special assistant to the Attorney General for appellant. Mr. Solicitor General was on his brief.

Mr. A. M. Stevenson for appellee. and Mr. Frederick Hall were on his brief.

Mr. S. L. Carpenter

MR. JUSTICE MCKENNA, after stating the case, delivered the opinion of the court.

We shall assume the genuineness of the title papers. It was so found by all the judges of the court below and, notwithstanding some irregularities in them, we are disposed to concur in the finding. The question which remains is, did the officers who made the grant have the power to do so?

Section 4 of the act establishing the Court of Private Land Claims provides that the petition of petitioners "shall set forth fully the nature of their claims to the lands, and particularly state the date and form of the grant, concession, warrant or order of survey under which they claim, by whom made, and pray in such petition that the validity of such title or claim may be inquired into and decided."

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In conformity to the act the petition in this case, after alleging ownership of the land, proceeds as follows:

"Your petitioner further represents that it owns, holds and possesses said land under and by virtue of a certain instrument of writing, now and hereafter designated as a grant title, bearing date the 12th day of April, 1838, duly made and executed by and on behalf of the state of Sonora, in the republic of Mexico, under and by virtue of article two (2) of the sovereign decree, number seventy (70) of the 4th of August, 1824, therein conceding to the state the revenues

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