« AnteriorContinuar »
proven, and deeming them material to the due presentation of this case in the findings of fact, requests the court to find the same as follows:' Following this request must be a statement in the form of distinct numbered proposition, of the facts which the party desires to have found; and each proposition must be so prepared with respect to its length, subject, and phraseology that the court may conveniently pass upon it; and they must be so arranged as to present a concise statement, in orderly and logical sequence, of the whole case, as the party desires it to appear in the findings of fact. Subjoined to each proposition must be references to the pages of the record or to the unprinted evidence relied on in its support; but no evidence must be set out. Documents which may enter into the findings of fact need not be presented in the statement, but may be referred to therein by the pages of the record.” 6 “Upon the filing of claimant's request for findings of fact and his brief, notice of such filing shall be given to the Attorney General. Within 60 days from the filing of claimant's brief and the notice thereof the defendants shall file in the clerk's office at least 15 copies of their objections to claimant's request for findings and their request for other or additional findings and their request for other or additional findings of fact in the case and their brief, and shall furnish to the claimant or his attorney of record, to be used in making up the trial record, 10 copies of such printed brief, trial record, 10 copies of such printed brief, objections to claimant's requested findings, and their request for other or additional findings. Where claimant's requested findings of fact are objected to the defendants shall point out specifically their objections to each requested finding and the part or parts of each requested finding to which objection is made, with appropriate references to the parts of the record relied upon to sustain their objections, and may suggest any changes in the request of claimant they may desire. After this is done the defendants may request such additional findings as they may deem material. Their request for other or additional findings must be in form and substance like that required of claimant by rule 74."7 “The attorney of each party shall append to his brief a table of depositions, letters, documents, or other papers which he may offer in evidence on the trial, with references to the pages of the record, and if they be not of the page record, then to the places where they may be found.'' 8 “In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their finding of facts, and their conclusions of law therein, in open court, before or at the time they enter judgment in the case.” 9 “In every such case, each party, at such time before trial, and in such form as the court may, prescribe, shall submit to it a request to find all the facts which the party considers proven and deems material to the due presentation of the case in the findings of facts.'' 10 “Should defendants unreasonably delay the preparation of the defense claimants may move that the case be placed upon the calendar. The court may be at any time, upon the motion of their party or upon its own motion, order any case to be placed upon the trial calendar after the lapse of six months from the filing of the petition, and may dismiss the same for nonprosecution if when the case is called the claimant does not show cause against such dismissal." 11 "Demurrers and pleas to the jurisdiction of the court will be placed upon the law calendar by the clerk immediately upon being filed, and will be heard and disposed of before the taking or printing of testimony on the merits.” 12 “Whenever, in any case which the claimant has not put on the Calendar, it shall be shown to the court on motion that an early decision thereof is important to the interests of the Government, the case may, in the discretion of the court, be placed on the Calendar by the defendants.'' 13 “No case in which a printed record is required will be heard unless the claimant makes up under the supervision of the clerk, and has ready at the time of trial a complete record of the case, consisting of the printed pleadings, evidence, and requests for facts and briefs, paged consecutively. All citations from or references to, such pleadings, evidence and briefs must be by the consecutive paging of such book. Each book shall contain on the first page thereof a complete index of its contents. At the time of trial of the case
6 Ct. Cl. Rule 74,
7 Ct. Cl. Rule 75.
8 Ct. Cl. Rule 77. As to French Spoliation Cases see Ct. Cl. Rule 102.
9 Appeals from Ct. Cl. Rule 4. 10 Appeals from Ct. Cl. Rule 5.
11 Ct. Cl. Rule 79.
the claimant shall furnish a copy of such printed record to each member of the court, and shall furnish one copy for the defendants and deliver one copy to the bailiff for binding. This rule shall also apply to cases submitted." 14
$ 681. References by Court of Claims. The Court of Claims cannot delegate its powers, but may refer cases involving complicated accounts and facts to a special commissioner to state the accounts, marshal the assets, and adjust the losses. Where several persons seek to recover the proceeds of property from a common fund, a reference is proper. If the claimant's neglect to furnish itemis makes a reference necessary, he must bear the expense. Notice of a reference must be given to all parties thereto. Exceptions should be taken if a party is not satisfied with the commissioner's findings.
$ 682. Evidence before the Court of Claims. The following statutes and rules regulate evidence before the Court of Claims : “The Judges and clerks of said court may administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same." 1 "When a petition is filed and issue of fact has been joined, either party may proceed to take testimony; but if issue is pending on demurrer such issue must be disposed of before testimony is taken.'' ? “The Court of Claims shall have power to appoint Commissioners to take testimony to be used in the investigation of claims which come before it, to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testimony, whether taken at the instance of the claimant or of the United States.” 8 “When it appears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it shall not authorize the taking of
14 Ct. Cl. Rule 86. The right of Crowell v. U. S., 6 Ct. Cl. 23. succession to the property of a de- 3 Jones v. U. S., 4 Ct. Cl. 197. cedent is regulated by the State 4 Ibid. law and the judicial construction of 5 Bright v. U. S., 12 Ct. C1. 646. a will, made by a State court of $ 682. 1 Jud. Code, $ 158, 36 St. competent jurisdiction will be fol- at L. 1087, re-enacting U. S. R. S., lowed by the Court of Claims. Ut- $ 1071. erhart v. U. S., 240 U. S. 598.
2 Ct. Cl. Rule 36. $ 681.
1 Intermingled Cotton 3 Jud. Code, $ 163, re-enacting U. Cases, 92 U. S. 651, 23 L. ed. 756. S. R. S., $ 1075.
2 Persons v. U. S., 10 Ct. Cl. 502;
any testimony therein." 4 “Unless the court order a witness to testify orally on the trial the evidence of witnesses must be by deposition, taken either before a commissioner of the court or a judge of a court of the United States, or a judge of a court of record in a State or Territory of the United States, or a United States commissioner, or a notary public.” 5 “When a witness can be conveniently examined before a judge of this court either party, at any time prior to the examination, may move for an order directing that his deposition be so taken. The court may order a witness or a claimant to be produced before the court or one of the judges thereof for examination." 6 "At the request of either party a person whom either expects or intends to call as a witness in the same case or in any kindred case, shall be excluded from the room where the testimony of a witness is being taken. If such a person remain in the room, or within hearing of the examination, after such request has been made, he shall not thereafter be admitted to testify in the case, or any kindred case, except by the consent of the party who requested his exclusion."7
“Depositions obtained in foreign countries must be taken on written interrogatories sent out under a special commission issued by the clerk. Depositions may be taken in like manner within the United States, by consent of parties, or when authorized by the court, or by the chief justice or a judge in vacation. The written interrogatories must be filed in the clerk's office, and notice thereof given to the adverse party. Within fifteen days after such notice the adverse party may file objections to any of the interrogatories, specifically stating the grounds of objection and may either file cross-interrogatories, or a notice that he will cross-examine the witnesses orally, which notice shall be attached to the special commission. If he file crossinterrogatories, the other party may, within fifteen days thereafter, file objections thereto, specifically stating the grounds of objection. No objections to an interrogatory or a cross-interrogatory will be considered at the trial unless taken before the commission issues.'' 8 “When a deposition is taken upon writ.
4 Ibid., § 165, re-enacting U. S. R. S., $ 1077.
5 Ct. Cl. Rule 37.
6 Ct, Cl. Rule 38. 7 Ct. C1. Rule 51. 8 Ct. Cl. Rule 41.
ten interrogatories and written cross-interrogatories, neither the Attorney-General, nor the claimant, his agent or attorney, nor any other person, shall be present at the examination of the witness, which fact shall be certified by the officer taking the depositions, who shall, in such cases, propound the interrogatories and cross-interrogatories to the witness in their order, and reduce his answers to writing in the witness' own words.” 9 “The party proposing to take depositions on oral examination shall cause fifteen days' notice to be given thereof to the other party, or his attorney. The notice must be in writing, and state the names of the witnesses to be examined, the day of the month, the hour, and the place of taking the deposition, and, if practicable, the name of the officer before whom such depositions are to be taken. But no deposition, except by consent of parties or the order of court, shall be taken during a day when the attorney of record for the claimant or the attorney of the Department of Justice charged with preparation of the case or cases in which the deposition is to be used is so engaged in the trial of cases in court that he cannot attend. It shall be the duty of the attorney receiving a notice to take depositions, in case he can not attend for the reason stated herein, to notify the attorney on the opposite side without delay that he will be unable to attend at the time and place stated in the notice. When the claimant proposes to take a deposition and the witness resides more than 500 miles from Washington, or when the defendants propose to take the deposition, and the witness resides more than 500 miles from the claimant or his attorney, one day's further notice shall be given for every additional hundred miles.” 10 “When depositions are taken on notice, as provided in Rule 43, if both parties are present or represented at the time and place specified in the notice, either party may, after the examination of the witnesses produced under the notice, be entitled to produce and examine other witnesses; but in such case one day's notice must be given to the adverse party, or his attorney, there present, unless such notice is waived." 11 "If a deposition is to be taken on
9 Ct. Ci. Rule 42.
11 Ct. Cl. Rule 49. A stenographer may be employed. Ct. CI.
Rule 58. There must be no record of any comment, explanation or argument by examining counsel. Ct. Cl. Rule 48. As to comparison