# Ex parte Zellner

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United States Supreme Court
76 U.S. 244
Ex parte Zellner
ZELLNER filed his petition in this court, and moved for a mandamus to the Court of Claims to compel them to allow an appeal from a decree which that court had made against him. The case was this. The relator was the owner of a quantity of cotton, stored at Macon, Georgia. In February, 1866, a special agent of the Treasury Department seized and carried away the same, and it was afterwards shipped by another agent of that department to the city of New York, and there sold by an agent of the government for $3076, after deducting all charges and expenses. On this state of facts the relator applied to the Court of Claims for a judgment against the government, in his favor, to this amount.
The court, on full consideration, denied the claim and dismissed the petition: whereupon he prayed an appeal from the decree of dismissal, which was refused. The single question presented was, whether or not the relator was entitled to an appeal. And this depended upon the construction to be given to certain statutes, as follows: An act of 24th February, 1855, conferred jurisdiction upon the Court of Claims 'to hear and determine all claims founded upon any regulation of an executive department, or upon any contract, express or implied, with the government,' 'and also all claims which may be referred to said court by either house of Congress.' An act, of 3d March, 1863, amending the former act, conferred jurisdiction, in addition to the above cases, 'of all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government, against any person making claim against the government in said court.'
The 5th section of this act of 1863 provided 'that either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court wherein the amount in controversy exceeds three thousand dollars, under such regulations as the said Supreme Court may direct.'
There was yet, however, another act in the case, the act providing for the collection of abandoned property in insurrectionary districts, passed March 12th, 1863, under which the property in question was seized. This statute provided, in the 3d section, that 'any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and, on proof to the satisfaction of the said court, of the ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, receive the residue of proceeds, after deducting expenses,' &c. The act contained no provision for an appeal from the judgments or decrees of the court. It was passed by Congress on the same day that the act of 1863, above referred to, was passed, reorganizing the Court of Claims, and authorizing it to render judgments against the government, with the right of either party to appeal to the Supreme Court, as already stated, though it was not approved by the President till nine days afterwards.
It was supposed below, as the act concerning abandoned and captured property conferred upon the Court of Claims a new subject of jurisdiction in addition to those previously provided for, and at the same time made no provision for appeals to the Supreme Court from their judgments or decrees, that no right of appeal existed in respect to either party, and that the general provision in the 5th section of the act reorganizing the court, and conferring what may be called its general jurisdiction, could not be invoked.
Mr. Durant, in support of the motion, argued that the Abandoned Property Act left the practice, remedy, and all jurisdictional conditions, to previous legislation about the Court of Claims; and that so an appeal existed under the act of March 3d, 1863, reorganizing that court.
Mr. Hale, special counsel of the United States, contra, citing and relying on United States v. Nourse, and the 1st section of the act of 25th June, 1868, providing for the allowance of an appeal by the government from all final judgments of the Court of Claims adverse to it, whether such judgment shall have been rendered by virtue of the general or any special power of the court-contended that no appeal being specially given by the Abandoned Property Act, and the whole matter in proceedings under that act being referred to the satisfaction of the Court of Claims, the case was not embraced by the general right of appeal given by the previous act of March 3d, 1863, reorganizing the Court of Claims.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

* ↑ 10 Stat. at Large, 612.
* ↑ 12 Id. 765.
* ↑ 6 Peters, 470, 494.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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