Ex parte Orange Fuller, Assignee of Manny G. Butler, and Robert E. Butler, Composing the Firm of Butler Brothers, Petitioner . riginal

• Citation: 45 L.Ed. 1230,21 S.Ct. 871,182 U.S. 562
• Decision Date: 27 May 1901
• Docket Number: O,No. 7,7
• Parties: Ex parte ORANGE FULLER, Assignee of Manny G. Butler, and Robert E. Butler, Composing the Firm of Butler Brothers, Petitioner . riginal
• Court: United States Supreme Court

182 U.S. 562

21 S.Ct. 871

45 L.Ed. 1230

Ex parte ORANGE FULLER, Assignee of Manny G. Butler, and Robert E. Butler, Composing the Firm of Butler Brothers, Petitioner.

No. 7, Original.

Argued and Submitted April 15, 1901.

Decided May 27, 1901.

Messrs. H. O. Shepard and W. T. Hutchings submitted the case for petitioner.

Mr. Richard B. Shepard was with them on the brief.

Messrs. James Hagerman, Clifford L. Jackson, and Joseph M. Bryson for respondent.

Mr. Justice Harlan delivered the opinion of the court:

Orange Fuller, assignee of Butler Brothers, brought an action on the 23d day of January, 1892, in the United States court in the Indian territory against the Missouri, Kansas, & Texas Railway Company, to recover the damages alleged to have been sustained in consequence of the negligence of the defendant resulting in the destruction of certain property of Butler Brothers by fire.

On the 1st day of May, 1894, the venue of the case was changed to the second judicial division of the territory, now the central district, and the result of a trial before the court and a jury was a verdict and judgment in favor of the plaintiff for $8,500.

The judgment was superseded, and the cause was taken to the United States circuit court of appeals for the eighth circuit, where the record was filed April 3d, 1895. In that court the judgment was affirmed on the 30th day of December, 1895. 18 C. C. A. 641, 36 U. S. App. 456, 72 Fed. 467.

The judgment of affirmance was superseded, and the case was brought to this court upon writ of error sued out by the railway company, the transcript of record being filed here on March 10th, 1896. In this court the judgment of the circuit court of appeals was affirmed January 3d, 1898. 168 U. S. 707, 42 L. ed. 1215, 18 Sup. Ct. Rep. 944. Our mandate was issued March 3d, 1898, and filed in the United States court in the Indian territory on July 22d, 1898.

On the 20th day of April, 1896, while the case was pending in this court, the railway company filed in the United States court in the Indian territory a petition for rehearing upon the ground of newly discovered evidence. Subsequently, at different dates, amended petitions were filed by the company for a new trial. To those amended petitions answers were made, and it was objected that the court was without jurisdiction or authority to grant a new trial, and that it could not consider the alleged newly discovered evidence.

On the 15th of January, 1900, after the filing in the court of original jurisdiction of the mandate of this court, Judge Clayton of that court granted the application of the railway company and made an order for a new trial.

It should be here stated that in that court there were other cases of a like character with the present case,—all growing out of the fire on account of which the present action was brought. One of those cases was Missouri, K. & T. R. Co. v. Wilder. In that case the United States court of appeals for the Indian territory adjudged that the plaintiff was not entitled to recover. 53 S. W. 490.

In the order granting a new trial in the present case it was stated: 'Now at this day comes the above-named defendant, and in support of the fourth amended petition for a new trial in this case files certified copy of opinion of the United States court of appeals for the Indian territory, in the case of Missouri, K. & T. R. Co. v. Wilder; and the court having fully considered the said amended petition for a new trial in this case, which was heretofore continued by agreement between counsel to this, the December, 1899, term of this court, together with the evidence thereon and the briefs of counsel filed both in support of and in opposition to said amended petition for new trial; and the court, having been fully advised in the premises find that the original petition for new trial was filed on the 20th day of April, 1896, in accordance with § 5155 of Mansfield's Digest of the Statutes of Arkansas, extended over the Indian territory by act of Congress, May 2d, 1890; and that summons was duly issued and served upon the plaintiff as required by said statute; and that the said plaintiff has duly entered his appearance in these proceedings, and filed answer to the original petition for new trial, as well as to the different amendments thereto, as such amendments have been based upon such additional evidence as the defendant alleges was discovered subsequent to the filing of the original petition for new trial and amended petitions for new trial respectively; and the court further finds that the evidence fully sustains the said petition for new trial, and that under the statute hereinbefore referred to and in view of the opinion of the United States court of appeals for the Indian territory in the case of the Missouri, K. & T. R. Co. v. Wilder, a companion case to this, that said petition should be sustained. Wherefore the court orders that the said petition be sustained and a new trial be granted.'

After setting out the above, the return made by Judge Clayton to the rule herein continued: 'Respondent would respectfully further show that it appeared upon the hearing of the petition for new trial in the Orange Fuller Case that the defendant railway company had used all possible diligence to discover the actual origin of the fire upon which that suit was founded, prior to the time of the trial of that case, and that it was to a large extent prevented from so doing by the strong influence which the plaintiffs in said case exerted over the minds of the people in the community where the fire occurred, and also by the actions of one of the plaintiffs, who, it was shown, urged several of the witnesses to conceal what information they had with reference to the origin of the fire; and that after the trial of the Orange Fuller Case in the district court the said railway company continued its efforts to discover the real origin of the fire, and as the result of its efforts it produced reliable new witnesses who proved by newly discovered and strong circumstantial evidence that the fire was set out through accident by one Dole Baugh and also proved by the admission of the said Dole Baugh, made while the fire was burning, that he had so set it out; and it was this evidence which largely induced the United States court of appeals for the Indian territory to render the opinion of reversal heretofore cited in the said Wilder Case, as well as induce the plaintiffs in the companion cases to dismiss their cases; and that not only the judges of the district court and the United States court of appeals for the Indian territory, but the plaintiffs in the above suits, became satisfied that these suits were all matters of great injustice and wrong, and satisfied this respondent that the original judgment in the Orange Fuller Case was also a great injustice and wrongfully obtained, and had the actual truth been fully known, and not purposely concealed, that the judgment in the Orange Fuller Case court of appeals for the eighth circuit or this honorable court; and your respondent further realized that a greater injustice and wrong would be done by permitting the plaintiffs in this said Orange Fuller Case to recover when the truth had been suppressed, and when all other plaintiffs were prevented from recovering because of the fact that the whole truth had come to light.'

The present proceeding is an application for leave to file a petition for a mandamus commanding the judge of the United States court in the Indian territory to set aside the above order of January 15th, 1900, granting a new trial, and to execute the mandate of this court.

The question presented is whether the court of original jurisdiction had authority upon newly discovered evidence to grant to the railway company a new trial after the final decision in this court.

By the act of Congress of May 2d, 1890, providing a temporary government for the territory of Oklahoma, and enlarging the jurisdiction of the United States court in the Indian territory, and for other purposes, it was declared:

'§ 31. That certain general laws of the state of Arkansas in force at the close of the session of the general assembly of that state of 1883, as published in 1884 in the volume known as Mansfield's Digest of the Statutes of Arkansas, which are not locally inapplicable or in conflict with this act or with any law of Congress, relating to the subjects specially mentioned in this section, are hereby extended over and put in force in the Indian territory until Congress shall otherwise provide, that is to say, the provisions of the said general statutes of Arkansas relating . . . to pleadings and practice, chapter 119.' 26 Stat. at L. 81, 94, chap. 182.

In Mansfield's Digest of the Statutes of Arkansas, chap. 119, will be found the following sections under the head of 'Pleadings and Practice:'

'§ 5151. A new trial is a re-examination in the same court of an issue of fact, after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: . . . Second. Misconduct of the jury or prevailing party. . . . Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.'

'§ 5153. The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision 7 of § 5151, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

'§ 5154. The application must be made by motion, upon written grounds, filed at the time of making the motion. The grounds mentioned in the 2d, 3d, and 7th subdivisions of § 5151 must be sustained by affidavits showing their truth, and may be controverted by affidavits.

'§ 5155....