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THE EXECUTORS AND HEIRS OF AUGUSTIN DE YTURBIDE, DECEASED, APPELLANTS, v. THE UNITED STATES.

December 1, 1859

THE EXECUTORS AND HEIRS OF AUGUSTIN DE YTURBIDE, DECEASED, APPELLANTS,
v.
THE UNITED STATES.



THIS was an appeal from the District Court of the United States for the northern district of California. The facts of the case are stated in the opinion of the court. It was argued by Mr. Blair for the appellants, and by Mr. Stanton for the United States.

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

Mr. Blair thus noticed the point upon which the case turned:

1. The District Court dismissed the appeal, on the ground that its own order, allowing the notice of appeal to be filed nunc pro tunc, was void.

I contend that this order was not invalid. The language of the statute, that 'the appeal shall be considered as dismissed' in case the notice is not filed as required, is directory merely. It prescribes a rule as to the time of filing a paper in the progress of a cause; and such rules are directory merely, and are never construed to prohibit the filing of the papers after the time limited, and before the adverse party has taken advantage of the omission.

O'Hara v. Nieury, 1 Sand. Sup. Ct., 655.

Cook v. Forrest, 18 Ill., 581.

Wood v. Fobes, 5 Cal., 62.

1 Barb., 478.

3 Rich., 60.

9 Alabama, 399.

1 Brevard, 203.

The suit was instituted, and notice given of its pendency to the United States, by filing the transcript from the record of the board of commissioners.

United States v. Ritchie, 17 Howard, 334.

And in this case the United States was in default on this very point, it not appearing that the Attorney General ...


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