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EX PARTE RUSSELL, 80 U. S. 664 (1871)
U.S. Supreme Court
Ex Parte Russell, 80 U.S. 13 Wall. 664 664 (1871)
Ex Parte Russell
80 U.S. (13 Wall.) 664
1. The words "final disposition" in the 2d section of the Act of June 25, 1868, allowing the Court of Claims
"at any time while any suit or claim is pending before or on appeal from the said court, or within two years next after the final disposition of any such suit or claim, on motion on behalf of the United States, to grant a new trial in any such suit or claim,"
mean the final determination of the suit on appeal (if an appeal is taken), or if none is taken, then its final determination in the Court of Claims. The Court of Claims has accordingly power to grant a new trial if the same be done within two years next after the final disposition, although the case may have been decided on appeal in this Court and its mandate have been issued.
2. When the Court of Claims, on a motion for a new trial under the 2d section of the Act of June 25, 1868, above referred to, has not reached the consideration of the motion on its merits, but has dismissed it under an assumption that they had no jurisdiction to grant it, mandamus directing the court to proceed with the motion is the proper remedy. Appeal is not a proper one.
3. But if the Court of Claims have granted an appeal, mandamus will not lie to cause them simply to vacate the allowance of it.
4. Semble, however, that it might lie to do so and to proceed to the hearing of the motion for a new trial.
5. The proper course in a case where the Court of Claims improperly (from supposed want of jurisdiction) refused to grant to the United States a motion for a new trial, made under the act of 1868, above referred to, and the United States appealed, stated to be for one or the other party to move to dismiss the appeal, and then for the United States to ask for a distinct mandamus on the Court of Claims to proceed, this Court stating that the motion to dismiss might be made at any time when the court was in session, and that it was not necessary to await the arrival of the term to which the record ought to be returned.
The second section of an Act of June 25, 1868, relating to the Court of Claims, thus enacts:
"That the said Court of Claims, at any time while any suit or claim is pending before or on appeal from said court, or within two years next after the final disposition of any suit or claim may, on motion on behalf of the United States, grant a new trial in any such suit or claim and stay the payment of any judgment therein upon such evidence (although the same may be cumulative or other) as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law."
It now appeared from the affidavit and exhibits on which this motion was based that in October, 1867, Russell filed a petition in the Court of Claims to recover from the United States compensation for the use of certain steamboats, and that he obtained a judgment for $41,355 on the 6th of December, 1869, that afterwards an appeal was taken to this Court on behalf of the United States, and the judgment of the Court of Claims was affirmed on the 20th of November, 1871, * that, pending the appeal, the counsel for the United States applied to the Court of Claims for a new trial, but the
motion was not argued until after the decision of the case here on the appeal, though it was argued before the mandate was issued; that the motion for a new trial failed by an equal division of the court; that the mandate from this Court was filed in the Court of Claims on the 12th day of December, 1871, and on the next day that court ordered a rehearing of the motion for a new trial; and that, on the 29th of January, 1872, the Court of Claims dismissed the motion for a new trial as for want of jurisdiction on the ground that, after it was made, the mandate of the Supreme Court had been filed affirming the judgment, and also on the ground that the motion had failed on the prior hearing by an equal division of the court. From this last decision the counsel for the United States appealed to this Court, and the appeal was allowed by the Court of Claims. Thereupon the claimant moved that court to vacate the allowance of the appeal, but the court refused to do so. He now moves this Court for a mandamus to compel the Court of Claims to vacate its order allowing the appeal. The grounds on which the application was made were:
First, that an appeal does not lie from an order refusing a new trial, because it is not a final judgment.
Secondly, that the granting of a new trial rests in the discretion of the court.
Thirdly, that the allowance of the appeal was a violation of the mandate of this Court.
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