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ing of facts and conclusions of law to be certified to this court as a part of the record.” 2

A finding of facts which is supported by any evidence is conclusive upon the Supreme Court. “In all cases in which judgments or decrees have heretofore been rendered, where either party is by law entitled to an appeal, the party desiring it shall make application to the Court of Claims by petition for the allowance of such appeal. Said petition shall contain a distinct specification of the errors alleged to have been committed by said court in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be correctly and accurately stated, certify the same, or may certify such alterations and modifications of the points decided and alleged for error as, in the judgment of said court, shall distinctly, fully and fairly present the points decided by the court. This, with the transcript mentioned in Rule 1 (except the statement of facts and law therein mentioned), shall constitute the record on which those cases shall be heard in the Supreme Court."'4 "In all cases an order of allowance of appeal by the Court of Claims,

2 Appeals from Ct. Cl., Rule 1. The findings have the same effect as a verdict of the jury. Crocker v. U. S., 240 U. S. 74. The opinion is no part of the findings and cannot supplement them. Ibid. A reply of the Court of Claims to a request of the executive officer charged with the execution of its judgment for a further opinion, was regarded by the Supreme Court as part of the decision. U. S. ex rel. Lowe v. Fisher, 223 U. S. 95, 56 L. ed. 364. The evidence should not be certified, except under special statutes giving the Court of Claims jurisdiction in equity. U. S. v. Anciens Establissements, 224 U. S. 309, 56 L. ed. 778. For cases remanded because the findings were insufficient, see Ripley v. U. S., 222 U. S. 144, 56 L. ed. 131; U. S. v. Archer, 241 U. S. 119. Where the findings fail

to state what the contract was the Supreme Court cannot determine that there was a contract when the facts do not establish this as a matter of law. D. L. & W. R. R. Co. v. U. S., 249 U. S. 385. A finding of facts is not required for the review of a judgment of dismissal for want of jurisdiction upon the ground that it does not show a contract between the claimant and the United States. Cartas v. U. S., 250 U. S. 545. See infra, $ 690.

3 William Cramp and Sons Ship and Engine Building Co. v. U. S., 239 U. S. 221. A finding that delay in the approval of a contract was reasonable is a finding of fact. J. E. Hathaway & Co. v. U. S., 249 U. S. 460.

4 Appeals from Ct. Cl. Rule 2, applicable only to decisions rendered before 1866.

or the Chief Justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal." 5 “Application for appeal to the Supreme Court of the United States from any judgment or decree of this court must be in writing, and signed by the claimant or his attorney of record, if the appeal be on his behalf; or if taken by the United States, it must be signed by the Attorney General or the proper Assistant Attorney General." “Such application if made when the court is not in session, must be filed with the clerk, and the date of filing the same must be indorsed upon it and noted upon the general docket." 6 Upon an appeal from the Court of Claims only questions of law are involved ? except under special statutes. 8

“All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered." 9

6 Appeals from Ct. Cl. Rule 3. 6 Ct. C1. Rule 96.

7 Talbert v. U. S., 155 U. S. 45, 39 L. ed. 64. This rule cannot be obviated by certifying the evidence to the Supreme Court. U. S. v. Anciens Establissements, 224 U. S. 309, 56 L. ed. 778.

8 U. S. v. Old Settlers, 148 U. S. 427, 463, 464, 37 L. ed. 509, 522, 523. See Harvey v. U. S., 105 U. S. 671, 691, 26 L. ed. 1206, 1213. Where Congress directs the Court of Claims to take jurisdiction in equity of a controversy, the Supreme Court on appeal may review the facts and the evidence must be certified with the transcript. Where both parties appeal, although the items of the disallowance of which the plaintiff complains amount to less than three thousand dollars, still he may avail himself of any thing in the case which properly shows that the judgment in his favor was not for too

large a sum; and consequently if the appeal of the United States is sustained in part, the items which were improperly disallowed may be set off against those which were improperly allowed. U. S. v. Mosby, 133 U. S. 273, 281, 33 L. ed. 625, 628.

9 Jud. Code, & 243, re-enacting U. S. R. S., $ 708. But see U. S. v. Davis, 131 U. S. 36, 39, 33 L. ed. 93, 94. Where, after a decree of the Court of Claims in favor of the petitioner, an act of Congress was passed, whereupon the court made another decree granting the same relief; it was held that an appeal could be taken within ninety days from the time of the entry of the second decree. Cherokee Nation v. Whitmire, 223 U. S. 108, 56 L. ed. 370. When a motion for a trial is duly made, the time to appeal does not begin to run until that has been decided. Ibid., 223 U. S. 108, 56 L. ed. 370.

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CHAPTER XXXVI.

WRITS OF ERROR AND APPEALS.

§ 687. Writs of error and appeals. In general. A writ of error is the appropriate proceeding for the review of the judgment of a court of law.) An appeal is the appropriate proceed

sum

$ 687. 1 Ward v. Gregory, 7 Pe- ningham v. Rodgers, C. C. A., 171 ters 633, 8 L. ed. 810; National Fed. 835. A judgment of a Federal Live Stock Bank of Chicago v. Na- court upon a legal cause of action tional Bank of Geneseo, 203 U. S. at common law to recover a 296, 51 L. ed. 192; Behn, Meyer & of money. Courtney v. Pradt, C. C. Co. v. Campbell & Go Tauca, 205 U. A., 160 Fed. 561. A judgment in S. 403, 51 L. ed. 857; Mulenberg Co. an action for the allotment of v. Dyer, C. C. A., 65 Fed. 634; U. S. dower, although the ancient comex rel. Schauffler v. Fidelity & De- mon-law procedure in such an action posit Co. of Maryland, C. C. A., 147 has been abrogated by the laws of Fed. 228; Kibler v. Gulf Land & the State. Parish v. Ellis, 16 Pet. Lumber Co., C. C. A., 166 Fed. 861. 451, 10 L. ed. 1028. A judgment It has been held that the following on a scire facias to enforce a fororders, judgments and decrees, can feited recognizance. Kerr v. U. S., be reviewed only by writ of error C. C. A., 159 Fed. 428; U. S. v. and not by appeal. Every judgment Northwestern Development Co., C. and order in an action at common C. A., 203 Fed. 960. A judgment law in a District Court, although a in an action for claim and delivery jury is waived. Campbell v. Porter, under the Code of North Carolina 162 U. S. 478, 40 L. ed. 1044; (N. C. Revisal 1905, SS 790-802); Porter v. F. M. Davies & Co., Smith v. Currie, C. C. A., 230 Fed. C. C. A., 223 Fed. 465. A judgment 803. A judgment upon an intervenin an action upon a promissory tion by third opposition under secnote. Jones v. Lavallette, 5 Wall. tions 395 to 400 of the Louisiana 579, 18 L. ed. 550; Teeg v. Suffert, Code of Practice, by a person claimC. C. A., 167 Fed. 125. See Price ing that property seized on execuv. U. S., C. C. A., 169 Fed. 791. In tion is exempt from seizure and the last two cases, appeals from the sale; New Orleans Louisiana United States Court for China were Construction Co., 129 U. S. 45, 32 L. dismissed. An action in the United ed. 607. A judgment or decree of States Court of China upon the bond condemnation and forfeiture, or disof a Consul General of the United missing a libel praying seizure and States for misconduct in office. Cun- forfeiture, under the Pure Food &

V.

Drugs Act. Four Hundred and For. ty-three Cans of Frozen Egg Prod. uct v. U. S., 226 U. S. 172, 57 L. ed. –, U. S. v. Seven Hundred and Seventy-nine Cases of Molasses, C. C. A., 174 Fed. 325; U. S. v. Hudson Mfg. Co., C. C. A., 200 Fed. 956. A final order or judgment in a proceeding for seizure and forfeiture of land, Armstrong's Foundry v. U. S., 6 Wall. 766, 18 L. ed. 882; or of personal property. U. S. v. Emholt, 105 U. S. 414, 26 L. ed. 1077. A judgment in a criminal case; Bucklin v. U. S., 159 U. S. 680, 40 L. ed. 304; Sena v. U. S., C. C. A., 147 Fed. 485. An order punishing a person for contempt of an order in a case at law or in equity; Gould v. Sessions, C. C. A., 67 Fed. 163. But see Nassau El. R. Co. v. Sprague El. R. & M. Co., C. C. A., 95 Fed. 415; supra, SS 434 436, 437. Upon an appeal from the final decree there may be a review of so much of the order as imposes a fine to indemnify a party injured by the contempt. Worden v. Searls, 121 U. S. 14, 26, 30 L. ed. 853, 857. A judgment after a trial by jury of the issues raised upon a petition of intervention founded upon a legal cause of action; Rouse v. Hornsby, C. C. A., 67 Fed. 219, 222; Texas & Pac. Ry. Co. v. Bloom's Adm'r, 164 U. S. 636, 643, 41 L. ed. 580, 583; Thompson y. Northern Pac. Ry. Co., C. C. A., 93 Fed. 384. A final order upon an application for a mandamus; Ward v. Gregory, 7 Pet. 633, 8 L. ed. 810; Muhlenberg County v. Dyer, C. C. A., 65 Fed. 634; Carter County v. Schmalstig, C. C. A., 127 Fed.'126. An order disbarring attorney, Thatcher v. U. S., C. C. A., 212 Fed. 801. An order or judgment adjudi

cating a party a bankrupt, or refus. ing such an adjudication, which is founded upon a verdict of a jury; Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200; Frederic L. Grant Shoe Co. v. W. M. Laird Co., 203 U. S. 502, 51 L, ed. 292; Duncan v. Landis, C. C. A., 106 Fed. 839. But see Lockman v. Lang, C. C. A., 128 Fed. 279. A judgment of the Court of Appeals of the District of Columbia, affirming final order of the Supreme Court of that District which admitted to probate and record a certain writing as a last will and testament, after the verdict of a jury; Ormsby v. Webb, 134 U. S. 47, 33 L. ed. 805, or after a trial without a jury, Campbell v. Porter, 162 U. $. 478, 40 L. ed. 1044, or affirmed an order in a proceeding to condemn land; Metropolitan R. R. Co. v. District, 195 U. S. 322, 49 L. ed. 219. The judgment of the Supreme Court of the Territory of Oklahoma, affirming a judgment of replevin, although the case was tried without a jury. Nat. Live Stock Bank of First Nat. Bank, 203 U. S. 296, 51 L. ed. 192. A judgment of the Supreme Court of the Philippine Islands affirming a judgment of the court of land registration granting, Gauzon v. Compania General, 245 U. S. 86; or dismissing an application for registration of land. Carino V. Insular Government of the Philippine Islands, 212 U. S. 449, 53 L. ed. 594; Tiglae v. Insular Government of the Philippine Islands, 215 U. S. 410, 54 L. ed. 257. No appeal can be taken from the final order or decree of a State court, although the proceeding was equitable in its nature. Cf. 88 666, 667, 669, supra. Final orders, judgments, and decrees of State courts can be reviewed

an

ing for the review of the decree of a court of equity or admiralty.3 A writ of error is the institution of a new suit in the court of review. An appeal is a new trial of the suit in the appellate court. The decisions of the District Courts in suits only by writ of error. U. S. R. S., Kenaday v. Sinnott, 179 U. S. 606, $ 709; Verden v. Coleman, 22 How. 614, 45 L. ed. 339, 344. A judg. 192, 16 L. ed. 336; supra, $ 500. ment or decree of a court of the

2 Marin v. Lalley, 17 Wall. 14, 21 United States in the exercise of L. ed. 596; Brewster v. Wakefield, matters which are usually within 22 How. 118, 16 L. ed. 301. Any the jurisdiction of probate courts. order in a suit in equity. Harry Laurel Oil & Gas Co. v. Galbreath Bros. Co. v. Yaryan Naval Stores Oil & Gas Co., C. C. A., 165 Fed. Co., C. C. A., 219 Fed. 884 (dis- 162. An order denying a petition missing a plea of intervention); to set aside a sale by a receiver of Swift Fertilizer Works V. Okolona a national bank, Files v. Brown, C. Cotton Oil Co., C. C. A., 186 Fed. C. A., 124 Fed. 133. A judgment by 158. It has been held that the fol- a District Court upon an appeal lowing orders, judgments and de- from a commissioner's order of decrees, can be reviewed only by appeal portation, U. S. v. Hung Chang, C. and not by writ of error: a final C. A., 134 Fed. 19; Lee Lung On v. order or decree in a suit or proceed- U. S., C. C. A., 159 Fed. 125. A ing, which in its essential nature is judgment or decree in a suit by a the foreclosure of a mortgage; Ma- judgment creditor to collect the rin v. Lalley, 17 Wall. 14, 21 L. ed. amount of his claim from a com596; Brewster v. Wakefield, 22 How. pany which has insured the judg118, 16 L, ed. 301; Southern Pine ment debtor from liability because Co. v. Ward, 208 U. S. 126, 136;

of the same.

Thomson v. Travelers' Nashville Ry. & Light Co. v. Bunn, Ins. Co., C. C. A., 161 Fed. 867. C. C. A., 168 Fed. 862.

A judg

An order in a habeas corpus proceedment for damages for personal in- ing in a District Court of the United juries, awarded by a special master States, Re Morrissey, 137 U. S. 157, to an intervenor in a foreclosure 158, 34 L. ed. 644, 645; Re Neagle, suit. A proceeding to enforce a 135 U. S. 1, 42, 34 L, ed. 55, 63; mechanic's lien by a sale of the Rice v. Ames, 180 U. S. 371, 45 L. property subject thereto, and a per- ed. 577; or in the Supreme Court of sonal judgment for the deficiency, the Philippine Islands, Fisher on Beunder a statute providing that the half of Barcelon v. Baker, 203 U. S. practice shall be in like manner and 174, 51 L. ed. 142. with like effect as in actions for 3 Supra, § 592. the foreclosure of mortgages, Idaho 4 Simpson v. First Nat. Bank, C. & 0. L. I. Co. v. Bradbury, 132 C. A., 129 Fed. 257, 259; Gould v. U. S. 509, 33 L. ed. 433. A judg. U. S., C. C. A., 205 Fed. 883. ment of the Court of Appeals of 6 Irvine v. The Hesper, 122 U. S. the District of Columbia affirming 256, 30 L, ed. 1175; Sun Co. v. Vin. a final settlement by the Orphans' ton Petroleum Co., C. C. A., 248 Court of an account of an executrix. Fed. 623, supra § 592.

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