Ex parte in the Matter of the United States/Opinion of the Court

"In this case it was ordered that the defendants' motion for a new trial be dismissed for want of juris iction, because, since the same was made, the mandate of the Supreme Court has been filed affirming the judgment of the court in this case, and because two of the four judges before whom the motion was argued, and to whom it was submitted on the 21st of November, 1871, have heretofore rendered and filed their decision that the motion be denied upon the merits.'

'Since the making of this order no action has been taken by this court in reference to said motion for a new trial.

'The reasons assigned in said order against the jurisdiction of this court to hear and determine said motion, are the only cause which the majority of the court have to show why the alternative mandamus should not issue from the Supreme Court in this case.

'In regard to the motion for stay of payment of judgment in the case of said Russell, which was filed by the Assistant Attorney-General, on behalf of the defendants, on the 11th of November, 1871, no action has at any time been taken by this court in relation thereto, and it is now on the files of this court undecided. It was a motion to stay payment of the judgment pending the said motion for a new trial, and the Assistant Attorney-General has not heretofore called it up for hearing.'

Justices Peck and Nott, for themselves, gave these additional reasons against the rule:

'That the defendants, by voluntarily arguing their appeal in the Supreme Court, after having made their several motions in the Court of Claims, which they did not proceed to argue in apt time, and by allowing the Supreme Court to proceed to judgment thereon while their motions in the Court of Claims were still pending, were guilty of experimenting upon the decisions of both courts, in a manner prejudicial to the ends of public justice; and that the course pursued by them in the Supreme Court while their motions in the Court of Claims were still pending, must be deemed a withdrawal of those motions from the latter court. And that it was against the course of justice for the defendants to subject the claimant to the expense and risk of a needless trial in the Supreme Court.'

After argument by Mr. G. H. Williams, Attorney-General, for the motion, and Mr. William Penn Clarke, contra, the court, on the 6th of May, 1872, ordered a PEREMPTORY MANDAMUS to issue, commanding the Court of Claims to hear and decide the motions for a new trial.

On the 31st of August following, the claimant, Russell, filed in the Court of Claims a remittitur of $4000 of his judgment, being one of the sums on account of the allowance of which in the judgment of that court, the defendants moved for a new trial; and the remainder of his claim was paid at the Treasury.