Motions are made in the case of United States v. Adams, and of the Same v. Johnson, to dismiss the appeals, upon the ground that they were not taken within the ninety days to which the act of Congress limits the right of appealing from the judgments and decrees of that court.
The fifth section of the act of March 3, 1863, under which the proceedings in appeal were had, enacts that 'either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court, wherein the amount in controversy exceeds three thousand dollars, under such regulations as said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment.'
This language implies that taking an appeal is a matter of right, and is something which the party as distinguished from court may do. When the court has rendered its judgment 'either party may appeal.' That is, has the right to appeal, and may exercise that right by his own volition. The court cannot prevent it, nor is the right dependent upon any judicial discretion.
So also the language of the proviso is to the same purport. The appeal is to be taken within ninety days, not granted, or allowed, or permitted, but taken-a word which implies action on the part of the appellant alone. So that, whatever the proceeding may be which constitutes appeal ng, or taking an appeal, it must be something which the party can do; and it would seem that no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims, can deprive him of the right, though the former may frame appropriate rules in accordance with which the right must be exercised.
We consider the paper filed by the solicitor in the office of the clerk of the court as sufficient in form to indicate the intention to exercise this right. It is addressed to the court, refers properly to the case, claims an appeal, and calls upon the court to take the action which the rules prescribed by the Supreme Court require of it.
But it is claimed that the rule so prescribed has not been complied with, and therefore the appeal is not taken within time. The third rule, the one here referred to, is this: 'In all cases an order of allowance of appeal by the Court of Claims, or by the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.'
The language of the rule would have been more technically accurate if the word 'taking' had been used instead of 'granting,' but the latter word is used in the rule to express the idea conveyed by the former in the statute.
To understand why the Supreme Court required an allowance of the appeal by the Court of Claims it is necessary to consider the two rules which precede this. A statute passed a year or two after the one we have been considering gave the right of appeal in cases where judgments had been rendered long previous to its passage. In framing rules upon this subject the Supreme Court determined that these rules should be so drawn that only questions of law could be brought here for review. The first rule provided that the party desiring to appeal, in cases decided before the rules were made, should present his petition to the Court of Claims, setting forth the questions of law decided against him which he desired to have reviewed; and that court was required to certify what had been its rulings on those questions. By the second rule the court was required, in all appealable cases thereafter decided, to make a finding of facts, and of their conclusions of law thereon, and make it a part of the record.
It is obvious that in both of these classes of cases it was proper that the attention of the court should be called to the taking of an appeal, and that it should not be treated as perfected until that court had prepared the statement of facts, or the statement of its rulings on questions of law which these rules prescribed. If something of this kind had not been required, the appeal might have been taken and the record filed in this court before the rule had been complied with.