UNITED STATES V. AYERS, 76 U. S. 608 (1869)

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U.S. Supreme Court

United States v. Ayers, 76 U.S. 9 Wall. 608 608 (1869)

United States v. Ayers

76 U.S. (9 Wall.) 608


The mere making and pendency of a motion in the Court of Claims for a new trial under the Act of June 25th, 1868, § 2, is not a sufficient ground for dismissal of an appeal taken to this Court prior to the making of such motion. But the granting of such motion, and the order for a new trial vacating, as it does, the judgment appealed from, is.

This case was an appeal from the Court of Claims, and the matter here reported presents the case of two motions, made at two different times, for the defendant in error to dismiss it; made the first time under one state of facts, and the second time under another and new state, and also a motion on the other side, under the new state of facts, for a special action by this Court hereinafter stated. The case in its whole history was thus:

One Ayres brought suit against the United States in the Court of Claims and obtained a judgment for the amount claimed by him. An appeal was taken by the government and was now pending here. While the appeal was thus pending, the counsel for the United States made a motion in that court for a new trial. This motion for the new trial was made under an Act of June 25, 1868, * in these words:

"That 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 such suit or claim may, on motion, on behalf of the United States, grant a new trial on 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 the judgment, the same shall be payable, and paid as now provided by law."

While the motion for a new trial was thus pending in the court below, and before any action upon it by that court, Mr.

Page 76 U. S. 609

Hughes, in this Court, for the defendant in error, Ayres, moved to dismiss the appeal, insisting on the part of the claimant that the two proceedings, the one of appeal, and the other of motion for a new trial were inconsistent and not in accordance with a reasonable interpretation of the act; that the counsel of the United States was bound to elect which of the two remedies he would adopt, and having, in this instance, elected the motion for a new trial, the appeal should be dismissed.

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