The provisions of § 1088, Rev.Stat., relative to new trials
in Court of Claims cases are applicable to cases brought under the
Indian Depredations Act of March 3, 1891, 26 Stat. 851.
The motion for new trial on behalf of the United States in Court
of Claims cases under the provisions of § 1088, Rev.Stat., may
be made any time within two years after final disposition of the
claim, and, if so made, the motion may be decided by the court
after the expiration of the two-years period.
While ordinarily a court has no power to grant a new trial after
the adjournment of the term if no application was made previous to
the adjournment, the power so to do can be given by statute, and
where a government consents to be sued, as the United States has,
in the Court
Page 210 U. S. 169
of Claims, it may attach whatever conditions it sees fit to the
consent and give to itself distinct advantages, such as right to
apply for new trial after the term, although such right is not
given to claimants.
On the eighth of June, 1891, the appellant herein filed his
petition in the Court of Claims under the Indian Depredations Act,
approved March 3, 1891, 26 Stat. 851, c. 538, to recover for losses
of property sustained by the firm of which, at the time of filing
the petition, he was the surviving partner, from the depredations
committed by members of a tribe of Cheyenne Indians in the year
1867, in or near the State of Kansas.
The petition contained the averments that the firm was, at the
time of the depredations, engaged in the business of operating the
Southern Overland Mail & Express Route between the then
terminus of the Union Pacific Railway and the city of Santa Fe, New
Mexico, and was carrying the mails of the United States between
those points.
Subsequently to such depredations, two of the members of the
firm died, and, at the time of the filing of the petition, the
petitioner was left as the sole surviving partner.
The depredations were committed by taking unlawfully and by
force or stealth from the possession of the firm, and in or near
the State of Kansas, some thirty-seven mules and six horses, used
by the firm in the operation of its business.
Under certain acts of Congress of March, 1885, 23 Stat. 362, c.
341, and May, 1886, 24 Stat. 29, c. 333, the claim of the firm for
the recovery of the losses thus sustained was submitted to the
investigation of the Secretary of the Interior, and after
investigation, the Secretary reported to Congress on the December
7, 1886, finding that the firm had a just and equitable claim upon
the United States for the amount of $7,740, the value of the
animals, as ascertained by the Secretary, who recommended the
payment of that sum. Congress never appropriated anything for the
payment of any part of the sum recommended. The amount awarded was
not as large as the firm claimed was the value of the property
destroyed,
Page 210 U. S. 170
but, for reasons stated in the petition to the court, it was not
attempted to correct the injustice by reopening the question of the
value upon the trial of the case before the Court of Claims.
The petition also contained an allegation that the tribe to
which the Indians belonged who committed the depredations was, at
the time the loss occurred, in amity with the United States.
After the filing of the petition, the parties agreed on the
facts, and, among others, it was agreed that the Indians took and
destroyed the property belonging to the claimant without just cause
or provocation, and that the Indians who took the property were
members of the Cheyenne Tribe, which was at the time of the
commission of the depredations, in amity and treaty relations with
the United States.
The case was submitted to the court on the thirtieth day of
June, 1892, and on the eleventh day of October, 1892, judgment was
entered in favor of the claimant for the sum of $7,740, being the
amount which had theretofore been reported to Congress by the
Secretary of the Interior.
On the sixth day of October, 1894, the Assistant Attorney
General filed in the clerk's office of the Court of Claims, while
the court was in recess, a motion for a new trial in accordance
with the provisions of § 1088 of the Revised Statutes of the
United States, the ground of such motion being that, in awarding
judgment in favor of the claimant, wrong and injustice had been
done to the United States because the defendant, the Cheyenne
Indians, were not in amity with the United States at the time of
the depredations which form the basis of the suit.
The Court of Claims, on the thirteen day of April, 1896, granted
the motion for a new trial and, upon the new trial which was
thereafter had, the court found as a fact that, at the time of the
several depredations alleged in the petition, the defendant Indians
were hostile, and, as a conclusion of law, the court decided that
the petition should be and the same
Page 210 U. S. 171
was dismissed, and judgment upon such finding and conclusion was
entered in the court on the twenty-third day of April, 1906.
The claimant, on the seventeenth day of September, 1906, moved
to vacate the judgment entered upon the new trial, and asked that
the original judgment, entered on the eleventh of October, 1892,
should be reinstated and affirmed. The motion was denied, and on
the twenty-fourth day of December, 1906, the claimant appealed to
this Court.
Page 210 U. S. 173
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The sole question in this case arises from the action of the
Court of Claims in granting, upon the application of the
government, a new trial April 13, 1896, more than two years
subsequent to the entry of judgment in favor of the claimant on the
eleventh day of October, 1892, although the application for such
new trial had been filed October 6, 1894, which was less than two
years after the entry of that judgment. The order was made under
§ 1088 of the Revised Statutes of the United States, which
reads as follows:
"SEC. 1088. The Court of Claims at any time while any claim is
pending before it, or on appeal from it, or within two years next
after the final disposition of such claim, may, on motion on behalf
of the United States, grant a new trial and stay the payment of any
judgment therein, upon such evidence, cumulative or otherwise, as
shall satisfy the 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."
The motion was made pursuant to instructions contained in the
Act of Congress approved August 23, 1894, 28 Stat. 424, 476, c.
307, which made appropriations to pay the judgments of the Court of
Claims in this case and 258 other Indian depredation cases. The
provision in the last part of § 1 of that act is as
follows:
"That no one of the said judgments shall be paid until the
Attorney General shall have certified to the Secretary of the
Treasury that he has caused to be examined the evidence heretofore
presented to the Court of Claims in support of said judgment and
such other pertinent evidence as he shall be able to procure as to
whether fraud, wrong, or injustice has been done to the United
States, or whether exorbitant sums have been allowed, and finds
upon such evidence no grounds
Page 210 U. S. 174
sufficient in his opinion to support a new trial of said case;
or until there shall have been filed with said Secretary a duly
certified transcript of the proceedings of the Court of Claims,
denying the motion made by the Attorney General for a new trial in
any one of said judgments."
The Attorney General examined the evidence theretofore presented
to the Court of Claims, and filed a motion for a new trial in this
and many other cases. The motions in this case and the others were
filed within two years from the dates of the respective judgments,
but it is admitted that none of them was acted upon by the Court of
Claims within that period. The Court of Claims was not in session
when the statute of August 23, 1894, was passed, nor when the
motions for a new trial were filed in the clerk's office of that
court, and it did not convene after the summer vacation until
October 22, at which date more than two years had elapsed since the
rendition of the judgment in this case.
It has been held by the Court of Claims (and, as we think,
correctly) that § 1088 is applicable to the Indian
Depredations Act of 1891, 26 Stat. 851, c. 538.
McCollum v.
United States, 33 Ct.Cl. 469, 472.
The appellant contends that the statute must be so construed as
to require the decision of the motion for a new trial within two
years after the final disposition of the case, and hence that the
motion should have been not only filed in the clerk's office, but
decided by the court on or before October 11, 1894. The government
contends that, as the motion was filed within the two years
subsequent to the entry of the judgment, the court obtained
jurisdiction over the motion, and it might be decided after the
expiration of the two years. Upon the theory of the appellant, the
accident of an adjournment of the court some months before, and its
failure again to meet until a few days after, the expiration of the
two years subsequent to the entry of the judgment deprived the
court of the jurisdiction to hear and decide the question of the
application for a new trial, although such application was
Page 210 U. S. 175
filed in its clerk's office within the two years limited by the
statute.
Ordinarily, a court has no power to grant a new trial after the
adjournment of the term if no application has been made previous to
the adjournment and no continuance granted.
Belknap v. United
States, 150 U. S. 588.
This act, however, is a peculiar one. It grants distinct advantages
to the United States.
United States v.
Ayres, 9 Wall. 608;
Henry v. United
States, 15 Ct.Cl. 162. These advantages Congress was competent
to grant. The government consents to be sued in regard to claims of
this nature, and may attach such conditions to its consent as to it
may seem proper. Among other conditions as to the finality of the
judgments of the court, it has empowered such court to grant a new
trial on motion of the United States, pursuant to the section
named.
The facts agreed upon on the first trial did not prevent the
court from granting a new trial under that section. Indeed, the act
of 1894,
supra, really directs the court to grant a new
trial if the facts are sufficient to bring the case within the
provisions of § 1088.
We think the motion for a new trial may be made or filed at any
time within the two years, as provided for, and it is not necessary
that the court should decide the motion within that time. If the
government has the whole two years in which to apply (and there is
certainly nothing in the statute which limits the time to less than
two years), it could not reasonably be held that an application
made near the end of the two years must nevertheless be decided
within that time. The motion might be filed at the last moment
before the expiration of the two years, and, if so, the court
should have time to thereafter act upon it, or else the two-year
limitation in which to file the motion is practically denied. If
the motion must be decided within the two years, it must, of
course, be filed sufficiently long before the expiration of that
period to allow the court what it may regard as a sufficient time
to decide it
Page 210 U. S. 176
intelligently within the limitation. How long that time may be
it is impossible to say. It would be for the court to determine in
each case. The result of such a construction is that there is no
certain and definite time within which the motion for a new trial
must be made, but it must be long enough before the expiration of
the two years to give the court the time it may require in which to
act upon the motion. This uncertainty we do not think was intended,
nor is it the proper construction of the statute. When it limits
the time to two years, it is a limitation of the time for filing
the motion, and not a limitation of the time for making a decision,
if the motion has been filed within the two years.
There is not much assistance to be obtained by referring to
decisions of the state courts in relation to statutes of a somewhat
similar nature, applicable to the ordinary law courts of the state.
They depend very much upon the special language of the various
statutes, all of which differ somewhat from the one under
discussion. In addition to that, however, the peculiar nature of
the Court of Claims itself must be considered. Congress created it
for the sole purpose of permitting certain classes of claims
against the government to be presented to and passed upon by it,
under the conditions which Congress might from time to time
prescribe. The statute must therefore be so construed as to give
full effect to such various conditions which Congress imposes upon
the claimant for the privileges accorded him. A right on the part
of the United States to move for a new trial should be so construed
as not to limit the right by any technical or narrow reasoning, but
the whole two years should be allowed in which to make the motion.
Some states have enacted statutes limiting the time within which
applications of this nature may be made, and they have been held
complied with if the application is made within the time limited,
although the decision is made subsequently. In other states, the
courts have regarded the time limitation as applicable to the time
when the decision of the question submitted is rendered. We do not
regard it as
Page 210 U. S. 177
necessary to cite them. The statutes differ, and the reasoning
of the courts also.
The question of the construction of this particular act has
heretofore been before the Court of Claims in
Bellocq v. United
States, 13 Ct.Cl.195. The court there held that the limitation
referred to the time of making the motion, and not to the time of
its decision. We think the reasoning of Chief Justice Drake in that
case is sound.
See also Mitchell v. Overman, 103 U. S.
62;
McCollum v. United States, 33 Ct.Cl. 469.
Having two years in which to file its motion for a new trial, the
government was in time in this case when it filed its motion with
the clerk of the court, the court itself being then in recess, and
it could thereafter hear and decide the case at its
convenience.
The judgment of the Court of Claims dismissing the petition
is
Affirmed.
