The mere making and pendency of a motion in the Court of Claims
for a new trial under the Act of June 25th, 1868, § 2, is not
a sufficient ground for dismissal of an appeal taken to this Court
prior to the making of such motion. But the granting of such
motion, and the order for a new trial vacating, as it does, the
judgment appealed from, is.
This case was an appeal from the Court of Claims, and the matter
here reported presents the case of two motions, made at two
different times, for the defendant in error to dismiss it; made the
first time under one state of facts, and the second time under
another and new state, and also a motion on the other side, under
the new state of facts, for a special action by this Court
hereinafter stated. The case in its whole history was thus:
One Ayres brought suit against the United States in the Court of
Claims and obtained a judgment for the amount claimed by him. An
appeal was taken by the government and was now pending here. While
the appeal was thus pending, the counsel for the United States made
a motion in that court for a new trial. This motion for the new
trial was made under an Act of June 25, 1868,
* in these
words:
"That 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 such suit or
claim may, on motion, on behalf of the United States, grant a new
trial on 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
the judgment, the same shall be payable, and paid as now provided
by law."
While the motion for a new trial was thus pending in the court
below, and
before any action upon it by that court,
Mr.
Page 76 U. S. 609
Hughes, in this Court,
for the defendant in
error, Ayres, moved to dismiss the appeal, insisting on the
part of the claimant that the two proceedings, the one of appeal,
and the other of motion for a new trial were inconsistent and not
in accordance with a reasonable interpretation of the act; that the
counsel of the United States was bound to elect which of the two
remedies he would adopt, and having, in this instance, elected the
motion for a new trial, the appeal should be dismissed.
MR. JUSTICE NELSON delivered the first opinion of the Court in
the matter.
"We shall not now undertake to give a construction of the
several provisions of this section, which are new and anomalous,
but shall leave that until cases of actual inconsistency or
conflict may arise between the two modes of proceeding. So far as
the present question is concerned, there is no great difficulty.
The act expressly provides that the motion for a new trial may be
made in the court below while the appeal from the judgment there is
pending in this court. So far the section is clear, and although it
may be regarded as giving to the government a considerable
advantage in the litigation, the power to give it by Congress
cannot, we suppose, be doubted."
The motion to dismiss was accordingly denied.
Soon after this action by this Court, the Court of Claims
granted the new trial which the government had asked for, and
stayed payment of the judgment until the final hearing of the cause
or the further hearing of the court.
Mr. Hughes now came forward again, asking, for the claimant, to
have the appeal dismissed, the ground now assigned being that a new
trial had been actually granted.
Page 76 U. S. 610
Mr. Hale, opposing this motion in the form asked, presented on
the other hand, for the government, a motion asking that the record
in the cause pending here might be remitted to the court below for
further proceedings in that court,
reserving all questions that
might arise in the judgment brought up by the appeal, or for such
other order as the court might deem proper.
And now, on this new state of things, after argument at the bar
and advisement,
The case stands thus: the petitioner has obtained a judgment in
the court below against the government, from which an appeal has
been taken, and is pending in this Court. A new trial has since
been granted by the court below, and the payment of the judgment
stayed. The act of Congress furnishes no solution to this
anomaly.
We are of opinion the granting of the motion to dismiss the
appeal, on the ground that the court has granted a new trial in the
cause under the act of Congress will furnish the best solution of
the embarrassments in which the parties find themselves involved.
It is quite apparent that the counsel for the government is
desirous to retain the appeal notwithstanding the order for a new
trial, under an impression that for some unknown or unanticipated
occurrence in the proceedings in the court below, the new trial
might fall through, and never take place, and, for the like reason,
the counsel for the petitioner desires to have the appeal
terminated, so as not to be available to his adversary. But it is
quite clear that the order granting the new trial has the effect of
vacating the former judgment, and to render it null and void, and
the parties are left in the same situation as if no trial had ever
taken place in the cause. This is the legal effect of the new trial
by a court competent to grant it. There is no reason, therefore,
for continuing any longer the case on our docket. The motion to
dismiss the appeal is
Granted.
* 15 Stat. at Large 75, § 2.
