Ex parte In the Matter of the United States

• Decision Date: 01 December 1872
• Parties: EX PARTE: IN THE MATTER OF THE UNITED STATES
• Court: U.S. Supreme Court

83 U.S. 699

21 L.Ed. 507

16 Wall. 699

EX PARTE: IN THE MATTER OF THE UNITED STATES.

December Term, 1872

ON motion by the Attorney-General, for an alternative writ of mandamus directed to the Court of Claims, commanding the said court to hear and decide certain motions for a new trial in the case of Russell v. The United States¹ (in which case the said Russell set up a claim for services of the steamer J. H. Russell, which he alleged had been impressed into the service of the United States during the rebellion), and for stay of payment of a judgment given by the said court against the United States in that case; or in default thereof to show cause to the contrary.

[This case was a continuation in another form of Ex parte Russell,² where this court had occasion to consider the meaning of the act of June 25th, 1868, which enacts that the Court of Claims, at any time while any suit is pending before or on appeal from it, or within two years after 'the final disposition' of any such suit, 'may, on motion, on behalf of the United States, grant a new trial . . . and stay the payment of any judgment;' and where, on the same facts as are hereinafter stated, the Supreme Court held that the words 'final disposition' extend to a final disposition of any case before it, and that mandamus and not appeal was the proper remedy. The points involved in this case will be better understood by reading the report of the one.]

The rule nisi being granted, the chief justice and judges of the Court of Claims, in answer to the rule, submitted to this court the following statement of the facts connected with the motions specified in the rule, and the action of the Court of Claims and the judges thereof, in reference to the first named of the said motions; the said statement by them being dated April 24th, 1872, and signed by the whole five judges of the court.³

'On the 1st of June, 1871, the Assistant Attorney-General of the United States filed in the said Court of Claims, on behalf of the defendants, a motion for a new trial in the case of Russell v. The United States, and assigned as a ground for the motion that fraud, wrong, and injustice had been done in the premises, in this: that for a part of the amount for which judgment had been rendered by this court in favor of the said Russell, his receipt in full had been found in the office of the Third Auditor of the Treasury, which receipt had come to the knowledge of the Attorney-General after the rendition of said judgment.

'On the 18th of September, 1871, he filed in the clerk's office of the court a specification of additional reasons for a new trial in support of the motion filed by him on the 1st of June, 1871, as aforesaid; one of which specifications indicated that, owing to a variance between the original depositions filed in the cause by the claimant and the printed copies thereof, upon which the judgment was rendered in favor of Russell, the said judgment was largely in excess of the amount which Russell should have recovered, as appeared from the actual evidence in the case, which variance had come to the knowledge of the Attorney-General after the rendition of the judgment in favor of Russell; and the other of the specifications averred that it appeared, from original receipts on file in the office of the Third Auditor of the Treasury, and from original reports on file in the office of the Quartermaster-General (copies of which receipts and reports were filed with the said specifications), that the steamer J. H. Russell was not seized or impressed into the service of the United States, as alleged by Russell, and as this court found, but was employed by the United States simply as a common carrier; and that Russell had been paid in full for the services of the boat during the time covered by the judgment; and that the said receipts and reports first came to the knowledge of the Attorney-General after the rendition of the judgment in favor of the said Russell.

'On the 22d of November, 1871, the said motion for a new trial having been argued on behalf of the defendants in support of it, and on behalf of the said Russell against it, before the court composed of Drake, Chief Jsutice, and Loring, Peck, and Nott, Judges, was submitted to the court.

'In conference thereon the said judges were equally divided in opinion; but the majority of them did not authorize any judgment to be entered in open court upon the motion; nor was any such judgment rendered.

'On the 11th of December, 1871, while the said motion was still pending in conference before the judges to whom it had been submitted, the Assistant Attorney-General filed a motion in open court to remand the said motion for a new trial to the law docket for a reargument;⁴ and on the 13th day of the said month, it was ordered by the majority of the court⁵...