US SUPREME COURT DECISIONS

The provisions of § 1088, Rev.Stat., relative to new trials in Court of Claims cases are applicable to cases brought under the Indian Depredations Act of March 3, 1891, 26 Stat. 851.

The motion for new trial on behalf of the United States in Court of Claims cases under the provisions of § 1088, Rev.Stat., may be made any time within two years after final disposition of the claim, and, if so made, the motion may be decided by the court after the expiration of the two-years period.

While ordinarily a court has no power to grant a new trial after the adjournment of the term if no application was made previous to the adjournment, the power so to do can be given by statute, and where a government consents to be sued, as the United States has, in the Court chanrobles.com-red

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of Claims, it may attach whatever conditions it sees fit to the consent and give to itself distinct advantages, such as right to apply for new trial after the term, although such right is not given to claimants.

On the eighth of June, 1891, the appellant herein filed his petition in the Court of Claims under the Indian Depredations Act, approved March 3, 1891, 26 Stat. 851, c. 538, to recover for losses of property sustained by the firm of which, at the time of filing the petition, he was the surviving partner, from the depredations committed by members of a tribe of Cheyenne Indians in the year 1867, in or near the State of Kansas.

The petition contained the averments that the firm was, at the time of the depredations, engaged in the business of operating the Southern Overland Mail & Express Route between the then terminus of the Union Pacific Railway and the city of Santa Fe, New Mexico, and was carrying the mails of the United States between those points.

Subsequently to such depredations, two of the members of the firm died, and, at the time of the filing of the petition, the petitioner was left as the sole surviving partner.

The depredations were committed by taking unlawfully and by force or stealth from the possession of the firm, and in or near the State of Kansas, some thirty-seven mules and six horses, used by the firm in the operation of its business.

Under certain acts of Congress of March, 1885, 23 Stat. 362, c. 341, and May, 1886, 24 Stat. 29, c. 333, the claim of the firm for the recovery of the losses thus sustained was submitted to the investigation of the Secretary of the Interior, and after investigation, the Secretary reported to Congress on the December 7, 1886, finding that the firm had a just and equitable claim upon the United States for the amount of $7,740, the value of the animals, as ascertained by the Secretary, who recommended the payment of that sum. Congress never appropriated anything for the payment of any part of the sum recommended. The amount awarded was not as large as the firm claimed was the value of the property destroyed, chanrobles.com-red

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but, for reasons stated in the petition to the court, it was not attempted to correct the injustice by reopening the question of the value upon the trial of the case before the Court of Claims.

The petition also contained an allegation that the tribe to which the Indians belonged who committed the depredations was, at the time the loss occurred, in amity with the United States.

After the filing of the petition, the parties agreed on the facts, and, among others, it was agreed that the Indians took and destroyed the property belonging to the claimant without just cause or provocation, and that the Indians who took the property were members of the Cheyenne Tribe, which was at the time of the commission of the depredations, in amity and treaty relations with the United States.

The case was submitted to the court on the thirtieth day of June, 1892, and on the eleventh day of October, 1892, judgment was entered in favor of the claimant for the sum of $7,740, being the amount which had theretofore been reported to Congress by the Secretary of the Interior.

On the sixth day of October, 1894, the Assistant Attorney General filed in the clerk's office of the Court of Claims, while the court was in recess, a motion for a new trial in accordance with the provisions of § 1088 of the Revised Statutes of the United States, the ground of such motion being that, in awarding judgment in favor of the claimant, wrong and injustice had been done to the United States because the defendant, the Cheyenne Indians, were not in amity with the United States at the time of the depredations which form the basis of the suit.

The Court of Claims, on the thirteen day of April, 1896, granted the motion for a new trial and, upon the new trial which was thereafter had, the court found as a fact that, at the time of the several depredations alleged in the petition, the defendant Indians were hostile, and, as a conclusion of law, the court decided that the petition should be and the same chanrobles.com-red

Page 210 U. S. 171

was dismissed, and judgment upon such finding and conclusion was entered in the court on the twenty-third day of April, 1906.

The claimant, on the seventeenth day of September, 1906, moved to vacate the judgment entered upon the new trial, and asked that the original judgment, entered on the eleventh of October, 1892, should be reinstated and affirmed. The motion was denied, and on the twenty-fourth day of December, 1906, the claimant appealed to this Court. chanrobles.com-red

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