Imágenes de páginas
PDF
EPUB

not give any aid or comfort to said rebellion, but was throughout that war loyal to the Government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed."'4 "The petition must comply with section 159 of the Judicial Code and must set forth: (1) The title of the action, with the full Christian and surnames of all the claimants. (2) A plain, concise statement of the facts, giving venue and date, free from argumentative, irreletive, and impertinent matter. (3) In cases transmitted by the head of a Department, or by either House of Congress a copy of the order of transmission and a definite statement of the amount for which he demands judgment, or the relief for which he prays.

"5 "When the claimant cannot state his case with the requisite particularity without an examination of papers in one of the Executive Departments and has been unable to obtain a sufficient examination of such papers on application, he may file a petition stating his claims as far as is in his power, and specifying as definitely as he can the papers he requires, and thereafter may file a motion for a call upon the proper department for such information or papers as may be deemed necessary, and when the same are furnished the petition may be amended and take the place of the original petition.” 6 "If the claimant be an executor, administrator, guardian, or other representative appointed by a judicial tribunal, a duly authenticated copy of the record of the appointment must be filed with the petition."'7 "If the claim be founded upon an act of Congress, or upon a regulation of an Executive Department, the act and the section thereof upon which the claimant relies must be specified, and the particular regulation of the Department must be stated in terms."! 8 "If the claim be founded upon an express contract with the United States, the substance of such contract must be set forth in the petition, and, if it be in writing,

4 Jud. Code, $ 184, 36 St. at L. 6 Ct. C1. Rule 24. 1087.

7 Ct. C1. Rule 27. 5 Ct. Cl. Rule 15.

8 Ct. C1. Rule 16.

the original or a copy must be annexed thereto. If it be founded upon an implied contract, the facts upon which the claimant relies to prove a contract must be specified. If it consists of several matters or items, each must be separately stated.” 9 “If the petition be verified by any one other than the claimant, a power of attorney authorizing him to prosecute the suit or make the verification must be annexed to the petition and filed therewith. In all cases where a petition is dismissed, and the court has jurisdiction so to do, a formal judgment shall be entered against the claimant in favor of the United States.” 10 "A claimant desiring to amend his petition or to introduce new parties may do so at any time before he has closed his testimony,' without special leave, by filing an amended petition embodying the amendments desired and serving a copy thereof on the Attorney-General. But any such amendments or the right to introduce new parties shall be subject to the objection of the defendants either before or at the trial. Any subsequent amend. ments must be by leave of court."' 11 “If

upon

the face of the petition it does not appear when the claim first accrued, the court may require the claimant to make the petition definite and certain in that regard, and in default thereof may dismiss the suit.” 18

§ 674. Pleadings by defendant in Court of Claims. “Demurrers and pleas must be filed within sixty days after the filing of the petition, unless the court extend the time.” i “If a demurrer be sustained, the claimant may, by leave of court, amend his petition within such time as the court may direct; but if he decline or fail to amend, judgment will be rendered dismissing the petition. If a demurrer be overruled the defendants may of right, plead to the petition within such time as the court may direct; but if they decline so to do, the claimant may pro9 Ct. C1. Rule 17.

the petitioner's action should be 10 Ct. C1. Rule 19.

raised by demurrer or plea. Penn11 Ct. Cl. Rule 25.

sylvania Co. v. U. S., 7 Ct. Cl. 401. 12 Ct. Cl. Rule 18.

It has been held that if the objec$ 674. 1 Ct. Cl. Rule 29. The de. tion is to the jurisdiction only, it fendant may demur at any time be- should be by plea. Ibid. The Unifore pleading to the merits; and a ted States may obtain leave after plea in bar may, by leave of the issue has been joined to plead specourt, be withdrawn and a demurrer cially to the allegations of loyalty. filed. Matthew's Case, 35 Ct. C1. Pierce v. U. S., 1 Ct. 01. 195. 595. An objection to the right of

time." 4

ceed with the case, but shall not have judgment for his claim or for any part thereof, unless he shall establish the same by proof satisfactory to the court." 2 Within three months after the filing of a set-off or counterclaim by the defendants, the claimant must answer the same by replication under oath unless the court extend the time." 3 “When the Attorney-General pleads, under section 1086 of the Revised Statutes that the claimant has practiced or attempted to practice fraud, he shall set forth the facts with sufficient particularity to enable the claimant to answer the same in detail, and the claimant shall, within three months after the filing of said plea, reply to the same with like particularity under oath, unless the court extends the

If the Attorney General fails to file a pleading or notice, a general traverse is considered as entered. “The Court will take notice that a claim is barred by the Statute of Limitations, when that appears, although the defense is not raised by the defendant's pleadings." Special rules of pleading do not bind the Court of Claims, but are usually followed, although the pleadings are construed liberally.7

§ 675. Amendments in Court of Claims. “If a demurrer be sustained, the claimant may, by leave of court, amend his petition, within such time as the court may direct; but if he decline or fail to amend, judgment will be rendered dismissing the petition." 1 Amendments of errors which have not misled the other party and which may be corrected without injustice, are usually allowed. “A claimant desiring to amend his petition

2 Ct. Cl. Rules 30, 31.
3 Ct. Cl. Rule 32.
4 Ct. Cl. Rule 33.
5 Ct. Cl. Rule 34.

6 Finn v. U. S., 123 U. S. 227, 31 L, ed 128.

7 Little v. Dist. of Col., 19 Ct. Cl. 323. A plea was held bad for duplicity when it set up a recovery in a previous action, and objected that the cause of action now sued upon accrued prior to the trial of such action, and might have been tried therein. Shrewsbury v. U. S., 9 Ct. Cl. 263.

$ 675. 1 Ct. C1. Rule 30.

2 Thomas v. U. S., 15 Ct. Cl. 335; Jones v. U. S., 1 Ct. Cl. 383. A petition which is not verified may be corrected by amendment. Griffin v. U. S., 13 Ct. Cl. 257, unless a special statute makes verification jurisdictional. Cherokee Indians V. Cherokee Nation, 19 Ct. Cl. 35. An amendment showing that the suit is brought in a representative capacity, and that a decedent owned the property claimed, may

be

allowed. Thomas v. U. S., 15 Ct. Cl. 335. A petition by joint owners may be so amended as to ask for separate judgments. Mott v. U. S., 3 Ct. Cl. 218;

or to introduce new parties may do so at any time before he has closed his testimony, without special leave, by filing an amended petition embodying the amendments desired and serving a copy thereof on the Attorney General. But any such amendments or the right to introduce new parties shall be subject to the objection of the defendants either before or at the trial.” 3 If seryices rendered under the contract sued upon subsequently to the commencement of suit are brought into the case by consent, the whole matter will be disposed of as if a single cause of action.4 An amendment may be allowed to the petition more than six years after the Statute of Limitations began to run.5

Eager y. U. S., 33 Ct. Cl. 336. A change of parties claimant may be allowed by amendment, when no new cause of action is introduced, and the effect is to substitute one representative for another. Cote v. U. S., 3 Ct. Cl. 64. The assignor may be substituted for the assignee by amendment. Burke v. U. S., 13 Ct, ('l. 231. See U. S. v. Gillis, 95 U. S., 407, 24 L. ed. 503. The vendee of the assignee may be substituted, although the claimant had assigned to another prior to his bankruptcy. Ches. & 0. R. Co. v. U. S., 19 Ct. Cl. 300. An administrator or executor of a decedent may be substituted for his heirs, Cowan Infants' Case, 5 Ct. Cl. 106; Woodruff and Bouchard's Case, 7 Ct. Cl. 605. An administratrix for herself as widow. Skelly v. U. S., 32 Ct. Cl. 227; Thomas v. U. S., 15 Ct. Cl. 335. It has been held that a new party cannot be substituted by amendment when not in privity with the original ones. Ches. & O. R. Co. v. U. S., 19 Ct. Cl. 300. In a suit against the United States and a tribe of Indians, another tribe was substituted for the latter after the statute of limitations had expired. Duran v. U. S., 31 Ct. Cl. 353. The succes. sor of one corporation to the fran

chises and property of another which had brought a suit in the Court of Claims was not allowed a substitution. Ches. & O. R. Co. v. U. S., 19 Ct. Cl. 300. Unnecessary parties may be stricken out by amendment. Molina v. U. S., 6 Ct. Cl. 269; Benton v. U. S., 5 Ct. Cl. 692; Roddin v. U. S., 6 Ct. Cl. 308.

A person who at the time when the suit was commenced was under a disability, may be made a party by amendment. Stanton v. U. S., 4 Ct. Cl. 456. When a claim has been referred by Congress, a party who claims as assignee cannot intervene unless the act making the reference permits his intervention. Atocha v. U. S., 6 Ct. CI. 69. A partner cannot intervene when the firm claims the same property. Bellocque v. U. S., 8 Ct. Cl. 493. See $ 211, supra.

3 Ct. Cl. Rule 25. See Shaw v. U. S., 9 Ct. Cl. 301. When a case is remanded for further proof, and the order specifies the amendment allowed, further leave need not be granted. Shaw v. U. S., 9 Ct. Cl. 301,

4 Cape Ann G. Co. v. U. S., 20 Ct. Cl. 1.

5 Griffin v. U. S., 13 Ct. Cl. 257. See also Devlin v. U. S., 12 Ct. Cl. 266.

$ 675a. Consolidation. Suits, in the Court of Claims, may be consolidated. “It has been a common and convenient practice in this court, where there are two suits between the same parties growing out of the same contract or cause of action, to consolidate them, to the end that the evidence in the first need not be duplicated in the second, and that both may be disposed of by one trial and argument. Conversely, under all conditions, parties have been allowed to bring in subsequently accruing demands by amendments. In such cases it is manifestly immaterial whether the second cause of action be brought in by a second suit, and the two suits be then consolidated, or whether it be brought in by directly making it a count in the original suit. The difference will be only one of form. But this practice extends properly only to cases where the cause of action is substantially the same in both suits, as for instalments successively becoming due on the same contract, or rents for different periods on the same lease. In such cases an adjudication in the first suit would be operative as res adjudicata or by way of estoppel in the second ; that is to say, if the contract or lease has been established in the first suit, all that the plaintiff will have to show in the second will be that another instalment has become due; and, conversely, if the contract or lease has been declared void in the former suit, the defendants, in the latter one, can use the adjudication by way of estoppel.”' %

§ 676. Attorneys in Court of Claims. “Suits may be commenced by the claimant in person, or an attorney of this court. If the claimant is represented by an attorney, an employment in writing must be filed with the clerk, and its execution must be proved or acknowledged before an officer authorized to take acknowledgments of deeds."' 1

Any person of good moral character who has been admitted to practice in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any State or Territory, may be admitted, on motion in open court, to practice as an attorney of this court.

$ 676. 1 Ct. Cl. Rule 6.•

8 675a. 1 Bellocque v. U. S., 8 Ct. Cl. 493. Cf. supra, $ 472.

2 Eager v. U. S., 33 Ct. Cl. 336, 337, per Mott, C. J.

« AnteriorContinuar »