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ecutive Department in response to a call, or through the Attorney-General are subject to objection by either party according to the rules of evidence at the common law; but neither party will be required to produce the originals of such papers, or to prove their execution, unless the party objecting to such papers files in the clerk's office a written denial of their genuineness. Such information and papers in reply to a claimant's call, not objected to by him before trial, will be regarded as evidence offered by claimant.” 34 “Any information or papers certified from any Executive Department, and filed in any cause, may by leave of court, be used and applied in any other pending cause to which the same may be applicable or pertinent, notice thereof being filed.”' 35 “The court may, at the instance of the Attorney-General, order any claimant, his agent, or attorney, to produce in court, or before any officer authorized to take depositions, any letters, papers, deeds, documents, or other writings in his possession or subject to his control, in any way relating to the claim sued upon; and any claimant, his agent, or attorney, who, after due notice refuses to produce such letters, papers, deeds, documents, or other writings, when in his power to do so, shall be subject to attachment for contempt, or the court may direct the petition to be dismissed." 36

The testimony will not be printed except by order of the court on written motion therefor. In printing the testimony the notices and the officers' captions and certificates will be omitted; but to each deposition there must be prefixed a title in the following form: Deposition of

for claimant (or defendants, as the case may be), taken at day of 19—; claimant's counsel,

-; defendant's counsel,

"If the claimant objects to printing information or papers so returned and the Attorney-General request to have the same printed, the clerk will note a memorandum of such request in the copy for the printer, with his initials attached, and when such information or papers are printed the

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documentary evidence is admitted, see The Ship Parkman, 35 Ct. Ci. 406, 409; Block v. U. S., 7 Ct. Ci. 406.

34 Ct. C1. Rule 62. 35 Ct. Cl. Rule 63. 36 Ct. Cl. Rule 65. 37 Ct. C1. Rule 66.

» 40 “The

same will be regarded as evidence offered on the part of the defense.” 38 “Before printing a return made to a call, the chief clerk will withhold from the copy for the Public Printer-First. All papers of which copies have been previously printed in the record of the case, and for this purpose he will compare the two copies, and if variations are found he will take the directions of the Chief Justice or any judge in chambers before sending the return to the printer. Second. All certificates of authenticity and certificates of acknowledgment. Third. All papers which both parties agree to omit. Fourth. All papers which a judge at chambers orders to be omitted." 39

"If the claimant objects to printing information or papers so returned, and the Attorney-General request to have the same printed, the clerk will note a memorandum of such request in the copy for the printer, with his initials attached; and when such information or papers are printed, the same will be regarded as evidence offered on the part of the defense. printed papers required by these rules must be in long primer type on unglazed paper and in royal-octavo pages, with the style and number of the case prefixed, and the paging in large distinct type in the upper corner of the page. Provided, That requests for findings of fact and briefs shall conform to the provisions of Rule 76. The printed paging of evidence, either for the claimant or the defendants, shall be a continuation of the record and continuous throughout the whole record and shall be properly indexed. The attorneys for the claimant and for the defendants shall see that the paging of their Request for Findings and Briefs follow the paging of that part of the record already printed when the brief is prepared.'' 41 “The deposition of a claimant, taken under section 1080 of the Revised Statutes, shall not be printed, unless the Attorney-General shall first have filed in the case a written declaration of his intention to read the same in evidence on the trial, and the filing of such declaration shall be considered as the exercise of the discretion vested in that officer by said section, and shall entitle the claimant to read the examination as evidence at the trial, if the Attorney-General declines to do so, unless for good cause shown the court shall otherwise order." 42 . 38 Ct. Cl. Rule 68.

41 Ct. Cl. Rule 69. 39 Ct. Cl. Rule 67.

42 Ct. Cl. Rule 70. 40 Ct. Cl. Rule 68.

case. 44

After the taking of testimony is closed and the case placed on the calendar, neither party can take new testimony without an order of the court upon an application, when the new facts sought to be proved must be stated with sufficient particularity to enable the opposing party to answer them; and the withdrawal of a case that has been submitted and its remand to the calendar will not authorize the taking further evidence without such special leave.48

In cases referred by an Executive Department after the accounting officers have certified a balance in favor of the claimant the United States do not assume the burden of proof to establish errors by such officers; but the claimants must prove their whole

“Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to the forces or government of the late Confederate States during the Civil War, the claimant asserting the loyalty of any such person to the United States during said Civil War shall be required to prove affirmatively that such person did, during said Civil War, consistently adhere to the United States and did give no aid or comfort to persons engaged in said Confederate service in said Civil War.” 45

$ 683. New trials. “When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial.” i “The Court of Claims, at any time while any claim

43 Giddings' Case, 29 Ct. Cl. 12.

44 McKnight v. U. S., 13 Ct. Cl. 292.

45 Ibid., § 161, re-enacting in substance U. S. R. S., & 1074.

$ 683. 1 Jud. Code, § 174, 36 St. at L. 1141, re-enacting U. 8. R. S., $ 1087. See $ 478, supra.

It has been held that the claim. ant cannot move for a new trial after the record has been sent to the Supreme Court upon appeal; Monroe's Case, 37 Ct. Cl. 79. The filing of an application for an appeal does not deprive the court of

jurisdiction to grant a new trial. Cherokee Nation v. Whitmire, 223 U. S. 108, 111. In a Congressional case there can be no new trial after the case has been reported by the court to Congress; Rymarkiewicz's Case, 42 Ct. C. 1; but when another bill, involving the same claim, has been subsequently referred to the court by a House of Congress, that operates to return the findings to the Court of Claims, which thereupon regains jurisdiction, and may grant a new trial upon proof of fraud. Hartien's Case, 42

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

“Whenever it is desired to question the correctness or the sufficiency of the court's findings of fact or its conclusions or to amend the same, the complaining party shall file a motion which shall be known and may be considered as a motion for a new trial. All grounds relied upon for any or all of said objects shall be included in one motion. After the court has announced its decision upon such motion no other motion by the same party shall be filed unless by leave of court. Motions for new trial, except as provided by section 1088 of the Revised Statutes (sec. 175 of the judicial code) shall be filed within sixty days from the time the judgment of the court is announced.'

by law.”2


Ct. Cl. 42. The fact that the amount involved in a cause precludes an appeal is no reason for a new trial. Deeson v. U. S., 5 Ct. Cl. 626. A new trial will not be granted because 2 party failed to communicate to his attorney essential evidence. Armstrong v. U. S., 6 Ct. Cl. 226. Nor, if the new evidence could have been discovered with due diligence before the first trial; Garrison v. U, S., 2 Ct. Cl. 382; s. C., 7 Wall. 688, 19 L. ed. 277; nor because the claimant was insane at the first trial, and has since been restored to health, in the absence of other sufficient reasons; Bramhall v. U. S., 6 Ct. Cl. 238; nor for new evidence which is merely cumulative; Silvey v. U. S., 7 Ct. Cl. 305; Payan v. U. S., 15 Ct. Cl. 56; nor if the new evidence is merely such as impeaches the character or credit of the witness; Payan v. U. S., 15 Ct. CI. 56; nor for an omission of the court to find a fact, which, if found, would not control the case. Rhine v. U. S., 15 Ct. Cl. 59. Motions analogous to motions to set aside a verdict because contrary to the weight of evidence will not be allowed as a matter of right. Calhoun v. U. S., 14 Ct. Cl. 193. If it appears that newly-discovered evidence may change the basis of the judgment and entitle the party to a review on the law,

a new trial may be granted; Murphy v. U. S., 15 Ct. Cl. 217; or if a motion because of newly-discovered evidence appeals to the court's sense of justice, and shows the existence of strong prima faoie reasons for doubting the correctness of a finding, a rehearing will be granted on that point; Ibid; and the findings may be amended for the better information of the Supreme Court without changing the result below. Jaeger v. U. S., 33 Ct. Cl. 214. Ex parte testimony admitted the hearing of a motion is sufficient to warrant the granting of a new trial. Ayers v. U. S., 5 Ct. Cl. 712.

2 Ibid., $ 175, re-enacting U. S. R. S., § 1088. This applies to claims under the Indian Depredations Act of March 3, 1891, 26 St. at L. 851; Sanderson v. U. S., 210 U. S. 168. A new trial may be granted on motion of the United States, within two years after the “final disposition" of the claim, although the judgment of the court has been affirmed and the mandate of affirmance filed. Ex parte U. S., 16 Wall. 699, 21 L. ed. 507. The words “final disposition" mean the final determination on appeal, if taken, or if there is none, then its final determi. nation in the Court of Claims. Ex parte Russell, 13 Wall. 664, 20 L. ed. 632. The Court of Claims has

"'3 "A motion for a new trial, other than under Revised Statutes, section 1088, must be founded upon one or more of the following grounds: First, error of fact; second, error of law; and third, newly discovered evidence." 4 "A motion founded upon an error of fact must specify with minuteness

the right to determine whether or not the motion for a new trial was made in time, and its decision is not subject to review if it has jurisdiction to act. Young v. U. S., 95 U. S. 641, 24 L, ed. 467; U. S. v. Crusell, 12 Wall. 175, 20 L. ed. 384. A motion on behalf of the United States need not be disposed of within two years. Bellocq v. U. S., 13 Ct. Cl. 195. A motion for a new trial on behalf of the United States may be made while an appeal is pending in the Supreme Court, and that court will not dismiss an appeal because of such motion; unless the motion is granted and a new trial ordered. U. 8. v. Ayres, 9 Wall. 608, 19 L. ed. 625; s. C., as Ayers v. U. S., 5 Ct. C. 712; U. S. v. Young, 94 U. S. 258, 24 L. ed. 153. The right of the United States to move for a new trial is analogous to the right of an individual to file a bill of review in chancery to set aside a former decree, or a bill impeaching a decree for fraud. Ex parte Russell, 13 Wall. 664, 20 L. ed. 632. See supra, $$ 446-451. Neither the

lack of diligence nor the laches of the officers of government is sufficient ground for a new trial. Child v. U. S., 6 Ct. Cl. 44. A new trial on motion of the United States will be granted, if it appears prima facie that wrong had been done the government. Douglas v. U. S., 11 Ct. Cl. 655; Ayers v. U. S., 5 Ct. Cl. 712; s. C., as U. S. v. Ayres, 9 Wall. 608, 19 L. ed. 625; Tait v. U. S., 5 Ct. Cl. 638. If an unsatisfied judgment which might have been pledged as a set-off existed, but was unknown to the defendant's attor. ney at the trial, it is cause for a new trial. Childs v. District of Columbia, 19 Ct. Cl. 332.

A new trial cannot be granted to the United States, because certain evidence which was not deemed material was not offered on the first trial; nor if it will enable the defendant to interpose a technical defense against a just claim. Ford v. U. S., 18 Ct. C1. 62, 70.

3 Ct. C1. Rule 90. 4 Ct. Cl. Rule 91.

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