#### ROBERTS' CASE. Marshall O. Roberts et al. *v.*The United States.

(15 Wallace R., p. 384.)

*On-the claimant’s application ex parte for Mandamus.*

*The eowt below renders judgment against the claimants, who immediately move for ' a new trial. Before the matter is heard, and within the ninety days alloioed by statute, the claimants appeal, but the Attorney-General at the same time stipulates that if the motion fpr new trial be postpioned the appeal shall be without prejudice to the claimants. The court being advised of the stipulation, does not act upon the appeal. Subsequently one of the counsel for 'the claimants, not their attorney of record, unauthorizedly aslcs the corn't to act on the appeal, and the court thereupion grants its allowance. On the next eowrt day the same counsel aslcs the court to vacate the allowance, lohich is done. Mea/nwhile the Supreme Court determines in*Russell’s Case (7 C. Cls. R., p. 268) *that “*so sooa as the inferior court grants its allowance of the appeal, the court "below loses possession of the case and it comes within the control of the Supreme Court, although the record has not been sent up.” *Accordingly the court below refuses to hear both the motion for a new trial and a motion to correct its record by stvilcing out the allowance of the appeal, on the ground that it lost jurisdiction when the appeal was alloioed, a/nd that the order of revocation, being made without jurisdiction, was a nullity. The claimants thereupion come into the Supreme Court and file their petition for a man-damns.*

I. Under the Rules of the Supreme Court regulating appeals from the Court of Claims, an appeal is taken in the sense of the statute when the defeated party signifies his intention to take one by filing his motion; but between the motion and its allowance there is an interval of time subject to the discretion of the court below.

II. There is no objection to. the Court of Claims hearing a motion for a new trial between the application for an appeal by the party and its allowance by the court; nor to subsequently allowing the appeal if the new trial be refused.

III. The Court of Claims has power to revoke its own allowance of an appeal if the record be still in its posséssion; and where the allowance is moved for by counsel without the authority of the attorney of record or through inadvertence, and its revocation is asked for promptly, it should be granted.*

*119*The Reporters’*statement of tbe case:

The claimants moved for a new trial in this case, which motion the defendants sought to have continued. The claimants did not object to the postponement, but feared that if the motion should be denied they would then have lost their right of appeal. To obviate that difficulty the Attorney-General attached to the notice of appeal the following stipulation:

“ It is agreed and stipulated that the above motion shall not in any way affect to its detriment the motion heretofore filed for the granting of a new trial, or in any way prevent a hearing and decision of said motion upon the merits thereof.

“ THOMAS WILSON,

*u Attorney for Plaintiffs.*

“ THOMAS H. TALBOT,

*“Assistant Attorney-General.*

“ EDWT) N. DICKENSON,

“ *Por Self and,*Trustees.”

The remaining facts appear in the return made by the Court of Claims to the rule of the Supreme Court requiring cause to be shown why a mandamus should not issue; as follows:

The suit of *Marshall 0. Roberts et al.*against *The United States*was instituted on the 2d day of March, 1866, by a petition signed by Owen & Wilson as attorneys for claimants; and from that .time to the present, Thomas Wilson, esq., one of the firm of Owen & Wilson, has acted in said suit as attorney of record for the claimants. Some time after the institution of said suit, E. M. Corwine, esq., a member of the bar of this court, appeared in said suit as counsel for claimants. On the 11th day of October, 1869, he filed in the case a printed argument for claimants, signed by him as “of counsel;” and from that time forward he has continued to act in said case, both as attorney and as counsel for the claimants, by appearing in open court as such and by signing papers in the cause as such. On the 27th day of February, 1871, the judgment of the court was rendered and entered of record, dismissing the claimant’s petition. On the 16th of May, 1871, a motion for a new trial was filed on behalf of claimants, which was signed by the said Wilson and the said Corwine, as attorneys for claimants, as set forth in connection with the petition herein for a writ of mandamus. On the 22d day of said month of May the application for an *120appeal was filed on behalf of the claimants, by said Wilson as their attorney, with the stipulation of counsel annexed; which papers are set forth in terms in connection with the petition of the claimants to the Supreme Court for a writ of mandamus. On the same day the said motion for a new trial was, by consent of parties, continued to the next term of the court, to be held on the first Monday of the ensuing December. On the 2d day of May, 1872, the said Oorwine appeared in open court, and moved the court to grant the appeal prayed for in the application filed as aforesaid by the said Wilson on the *22d*of May, 1871; and it was ordered by the court that the appeal be allowed. On 'the next day of the sitting of the court, to wit, May 6, 1872, the said Oorwine appeared 'in open court, and filed a motion to revoke the order allowing said appeal: which motion the court allowed. On the 22d day of November, 1872, the claimants called up their aforesaid motion for a new trial ■ for argument; but the court refused to entertain said motion for the reasons set forth in the following order entered of record that day: “ The motion for a new trial filed by the claimants in. this case on the 16th day of May, 1871, coming on to be heard, it is ordered, that the said motion be not entertained by the court, because, on the 2d day of May, 1872, an appeal was, on the motion of claimants, allowed in this case to the Supreme Court of the United States; which allowance of appeal, it is considered by the court, was not set aside by the order to that intent made on the 6th of May, 1872; which order was made without jurisdiction in this court, after the allowance of the appeal.” On the 23d day of November,. 1872, the claimants filed in court their motion for the correction of the record in the case, as the same and the accompanying affidavits are set forth by the claimants in connection with their application for a writ of mandamus. This motion the court refused to entertain, for the reason stated in the following order entered of record that day: “ The claimants, by their attorney, filed a motion to the court to correct its journal record by revoking and striking out the order of allowance of appeal in this ease made and entered on the 2d day of May, 1872, and submit affidavits in support of said motion; whereupon the court refuses to entertain the said motion, because it considers that since the allowance of appeal so made and entered it has no jurisdiction thereof.”

Having thus stated all the facts in the- case which appear to *121be essential to the proper determination of this matter, the undersigned set forth and show, as causes why a writ of mandamus should not issue herein, the following: First. The order of the court allowing the appeal prayed for by the claimants, through their attorney, Thomas Wilson, was lawfully and rightfully made when moved for by said Oorwine. Second. After that order was made, the case was no longer within the jurisdiction of the Court of Claims, but within that of the Supreme Court of the United States.

The facts stated herein, and the positions of law herein taken, are all the cause which the undersigned have to show why a writ of mandamus should not be issued as prayed by the petitioners.

C. D. DRAKE.

EDW’D G. LORING-.

SAM. MILLIGAN.

*Mr. Thomas Wilson*(with.whom was *Mr. M N. Dickerson)*for the petitioners:

The court below supposed itself hampered by a technical difficulty which seemed to stand in the way of substantial justice; which difficulty was, that the order of the 2d of May seemed to have appealed the case and so annulled the stipulation. To this we make these two answers: First, that-by the order of the 6th of May the court had corrected the error which the order of the 2d of May created in the record, and therefore the motion for new trial should have been heard just as if the order of the 2d of May had not been entered; and secondly, that if the order of May 2 was not corrected by the order of the 6th of May, then we are entitled now to have it corrected by the Court of Claims as contrary to the truth.

In the case of *Fay*v. Wenzell, (18 Cush., 317,) the court says: *“*Having authority to correct their own record, it is to be presumed that any amendment of the record made by them will be in accordance with the fact.” It might be true enough that the order of May 6 would be ineffectual to recall an appeal *if well taken,*and yet be entirely effectual to correct an order purporting to take an appeal, which had been entered by mistake and without authority. If the order of May 6 can be justified for *any reason,*it should be held to be effectual, even though in some other view it might be unauthorized.

*122But, under the second reason, it is undoubtedly the right of the plaintiffs to have the record corrected and the motion for new trial heard. The order of the 2d of May sets out that the “ attorney” of the plaintiffs moved the court for that order. This was not the truth. The attorney for the plaintiffs was Thomas Wilson, who was not in Washington, and who had not anthorized that motion to be made. Mr. Oorwine was in some sense *an*attorney for the plaintiffs — that is, he was employed as *counsel*in the cause; but he was not *“ their attorney'1'1*of record, nor was he authorized to affect the record in the case by any motion which he might make.

The court recognizes but one attorney of record, and he it is who brings the suit. Other counsel who appear in the cause afterward are not attorneys in the case, in the sense in which the attorney of record holds his office. The court will not permit a new attorney to be substituted without leave of the court; nor will they permit any other attorney to affect the record. It is true that other counsel do move in the court; but they are allowed to do so under the presumption that they are acting by the instruction of the attorney of record; and the name of the attorney of record should appear on any order or paper in the cause. If it should turn out that neither the parties nor their attorney of record had authorized a motion to be made, the record which recited that the parties, by *“*their attorney, *”*have moved the court, would be false; and it is entirely immaterial, so far as the effect of the motion on the rights of parties is concerned, whether it was made in good faith, or with intent to injure them. If the parties by their attorney of record choose to adopt it, they ratify the act; if not, they cannot be bound by *it.*— Ginden v. Moore, (1 Barn. *&*Ores., 654.)

Under these circumstances, *mandamus is*the *only*remedy for the plaintiffs. If this court shall be - of opinion that, as the record stood when corrected by the order of the 6th of May, the motion for new trial should have been heard, then we ask a *mmdamus,*for that reason. If, however, this court shall be of opinion that the order of the 6th of May was ineffectual, then we are entitled to a *memdamus,*that it may be decided whether the record of the 2d of May is true or false. The Court of Claims has refused to try that question; alleging, as a reason for its refusal, that the case was appealed by the very order whose truth is denied and called in question. Obviously the Court of Claims *123erred in this; for it cannot be known whether the case was appealed or not until it is .decided whether the record, purporting to grant the appeal, is true or false.

It is just to the Court of Claims to say, that his Honor the Chief Justice, in announcing the refusal of the court to hear either the motion for the new trial, or the motion to correct the record, said that it was for the interest of the plaintiffs that the right of the court to hear those motions should be decided by *mandamus;*otherwise, after a new trial had been granted, it might be held by the Supreme Court, upon appeal, that the Court o’f Claims had no jurisdiction under the circumstances, and so the plaintiffs might lose their rights. The Chief Justice expressed the wish of all the judges to hear the motion for new trial, if they could be relieved from the technical difficulty which the state of the record seemed to exhibit.

*

 Overruling apparently what was said in *Russell’s Case,*(7 C. Cls. R., p. 6 34, vi; 13 Wallac R., p. 664.)

Mr. Chief Justice Chase

delivered the opinion of the court:

The main question arising on the motion before us is this:

Does the allowance of an appeal to this court by the Court of Claims, absolutely and of itself remove the cause from its jurisdiction, so that no order revoking such allowance can be made1?

The *Act 3d*March, 1833, authorizes appeals under such regulations as this court may direct, provided such appeals-be taken within ninety days after such judgment or decree. .

By our third rule, regulating these appeals, we directed that this limitation of ninety days should “ cease to run from the time of the application for the appeal.” In other words, the appeal was taken, in the sense of the act, when, the defeated party in the Court of Claims signified, by his motion for the allowance of an appeal, his desire to take one. But, by the same rule, we declared that an allowance by the court or the Chief Justice in vacation was essential to the perfecting of an appeal; so that there might be, between the motion for. the ' appeal and its allowance, an interval of time, greater or less as might be determined by the convenience of counsel, subject to the discretion of the court.

The judgment in the casebefpre us was rendered-on the 27th of February, 3871. On the 16th of May a motion for new trial was made, and on the 22d of the same month there was filed a motion for the allowance of an appeal. This motion was in *124time, and, unless there be some rule of the Court of Claims to the contrary, we perceive no objection ta hearing the motion for new trial at any time after it was made, or, if that should be refused, to the subsequent allowance of the appeal.

It appears, however, that the attorney for the petitioners, apprehending some prejudice to his motion for new trial from the motion for an appeal, entered into a stipulation with the Assistant Attorney-General, representing the United States, which was hied with the motion for an appeal, that the latter motion should not injuriously affect the former, or prevent a full hearing and 'decision upon the merits.

Both motions were thereupon continued.

Subsequently, while both were pending, one of the counsel for the plaintiffs, not the attorney of record, and without the assent or knowledge of the attorneys of record, moved the court, on the 2d day of May, 1872, for the allowance of a¡n appeal as prayed by the motion of the 22d of May, 1871, and the appeal was allowed. As soon thereafter as the motion could be made, the same counsel moved for and obtained an order revoking this allowance. Afterward, the motion for new trial coming on to be heard, on the 22d November, the court refused to entertain it, on the ground that an appeal had been allowed on the 2d May, 1872, and that the cause having been thus removed from its jurisdiction, the subsequent order revoking that allowance was a nullity. The attorney for the petitioners then moved the court to strike out the allowance of appeal on the 2d of May, 1872, but the court refused to entertain that motion.

The question whether the court erred is now before ,us.

We are clearly of opinion that the Court of Claims had power to hear and ought to have heard and determined both motions, and that its order of revocation, made on the 8th of May, 1872, was within its jurisdiction.

That it ought to hear and decide the motion for new trial is obvious; for, when that motion was called up on the 22d of November, 1872, the order revoking the allowance of appeal stood itself unrevoked. A new order was necessary to get rid of its effect, Ás long as it remained on the record no question could be made of its operation.

But was it a nullity in fact ?

It cannot be denied that the order allowing the appeal was *125improvidently made. It was moved for without authority, or, if with authority, under a total misapprehension of fact and in disregard of the stipulation entered into by the attorneys in the cause. Its effect was to destroy the previous motion for a new trial, contrary to the express terms of the agreement. It had hardly been made when the counsel who had inadvertently moved for it, moved for its revocation, and the motion was granted. We do not doubt the power or the propriety of that action. The whole record was still in the possession of. the Court of Claims; and the stipulation showing that the motion for an allowance of the appeal could not properly be disposed of before the motion for new trial had been heard and determined, was a part of‘that record.

We shall, therefore, award a mandamus, requiring the Court of Claims to hear, entertain, and decide the motion for a new trial, and also the motion to correct the records of that court, as set forth in the motion to this court made in behalf of the petitioners.