# Ex parte Russell

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United States Supreme Court
80 U.S. 664
Ex parte Russell
MOTION, by Mr. William Penn Clarke, for a writ of mandamus; the case being thus:
The second section of an act of June 25th, 1868, relating to the Court of Claims, thus enacts:
'That the said Court of Claims, at any time while any suit or claim is pending before or on appeal from said court, or within two years next after the final disposition of any suit or claim, may, on motion on behalf of the United States, grant a new trial in any such suit or claim, and stay the payment of any judgment therein, upon such evidence although the same may be cumulative or other) as shall reasonably satisfy said 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 by law.'
It now appeared from the affidavit and exhibits on which this motion was based, that in October, 1867, Russell filed a petition in the Court of Claims to recover from the United States compensation for the use of certain steamboats, and that he obtained a judgment for $41,355 on the 6th of December, 1869, that afterwards an appeal was taken to this court on behalf of the United States, and the judgment of the Court of Claims was affirmed on the 20th of November, 1871, that, pending the appeal, the counsel for the United States applied to the Court of Claims for a new trial, but the motion was not argued until after the decision of the case here on the appeal, though it was argued before the mandate was issued; that the motion for a new trial failed by an equal division of the court; that the mandate from this court was filed in the Court of Claims on the 12th day of December, 1871, and on the next day that court ordered a rehearing of the motion for a new trial; and that, on the 29th of January, 1872, the Court of Claims dismissed the motion for a new trial as for want of jurisdiction, on the ground that, after it was made, the mandate of the Supreme Court had been filed affirming the judgment, and also on the ground that the motion had failed on the prior hearing by an equal division of the court. From this last decision the counsel for the United States appealed to this court, and the appeal was allowed by the Court of Claims. Thereupon the claimant moved that court to vacate the allowance of the appeal, but the court refused to do so. He now moves this court for a mandamus to compel the Court of Claims to vacate its order allowing the appeal. The grounds on which the application was made were:
First, that an appeal does not lie from an order refusing a new trial, because it is not a final judgment.
Secondly, that the granting of a new trial rests in the discretion of the court.
Thirdly, that the allowance of the appeal was a violation of the mandate of this court.
Mr. Clarke, in support of his motion, argued that the first and second reasons assigned needed no explanation. That the third one was well founded, and that the allowance of the appeal was a violation of the mandate of this court appeared on a right reading of the 2d section of the act of June 25th, 1868, under which the motion for the new trial was made. That section does but extend the time within which the government may exercise the right of appeal. The extension is:
1st. 'While any suit or claim is pending before or on appeal from said Court' (of Claims); OR,2d. 'Within two years next after the final disposition of any such suit or claim.'
'Final disposition.' Where? In the Court of Claims, of course. The act relates only to the Court of Claims, and the limitation is twofold. If the two limitations were united by the conjunction and, instead of the preposition 'or,' the section would then bear the construction contended for by the government. The case was not 'pending on appeal from said court' when the motion for a new trial was argued, and the court properly overruled the motion. Its jurisdiction over the cause terminated when the mandate of this court, showing that the judgment had been affirmed, was filed in that court, except so far as its action was required to carry the judgment into execution. And the cause not being pending there, the court had no power to grant the allowance of an appeal. To have done so, would have been to have allowed an appeal to the Court of Claims from this court. Having erred in allowing the appeal, the order should have been vacated on the motion of the claimants.
Mr. W. McMichael, Assistant Attorney-General, and Mr. B. H. Bristow, Solicitor-General:
1. The appeal is not from an interlocutory order, but is the final judgment of the court below in the case.
2. The refusal to grant a new trial was a decision of the case against the United States; it involved not a matter of discretion but one of right. The words 'final disposition' in the section under which this motion for a new trial was made do not relate alone to the action of the Court of Claims, but where cases are taken by appeal to the Supreme Court include the disposition of the case by the latter tribunal. A case which is thus taken to the Supreme Court cannot be regarded as finally disposed of until the court has expressed its judgment, and the two years recited in the statute are to be measured from that time. In the present case that limitation had not yet expired, and the motion for a new trial was not only made within it, but also within two years from the judgment of December 6th, 1869, in the Court of Claims.
Mr. Justice BRADLEY delivered the opinion of the court.

## Notes

* ↑ See the report of the case, supra, p. 623. The case was decided at the close of the last term.
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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