
    AYERS’ CASE. Asher Ayers v. The United States.
    
      On Motion.
    
    
      A motion is made by the defendants in this court while an appeal is pending in the Supreme Court, to open the judgment and grant a new trial, upon newly discovered evidence. It consists of a bond to the Confederate States, on xohieh the claimant is a surety, and of an agreement between the claimant and a Confederate quartermaster. The bond and contract are produced on themotion, but none of the subscribing ivitnesses are called to prove the execution. The defendants’ counsel makes affidavit that he expects to prove the genuineness of the signatures, and that the principal in the bond ivas a quartermaster in the Confederate army. The claimant objects to the sufficiency of the evidence offered.
    
    Under the Act 25i7t. June, 1868, (15 Stat. L., p. 75, $ 2,) which allows this, court, while any suit is pending on appeal, on motion of the defendants, to grant a new trial “upon such evidence, although the same may he 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," tlie formal “ evidence” required is not that which will be given on the trial. JEx parte testimony, of the kind and character usually admitted by courts, on the hearing of motions for new trials, making- out a prima facie case, is sufficient. Hence it is not necessary for the defendants to prora a bond by the subscribing witness, but to show a reasonable probability that they can prove it on the trial.
    
      Messrs. Hughes and Fecit, for claimant.
    
      Mr. It. 8. Hale, special counsel of tbe Treasury, for tbe defendants.
   Casey, Cb. J.,

delivered tbe opinion of tbe court:

Since tbis cause bas been decided, and since tbe allowance of tbe appeal to tbe Supreme Court of tbe United States, a motion bas been made to open tbe judgment and grant a new trial upon newly discovered evidence, wbicb consists of—

First, in a bond executed by Charles C. Sims, as principal, and Asber Ayres and William B. Carbart, as sureties, running to tbe Confederate States of America, in tbe penalty of $20,000, dated tbe 5tb day of September, 1863, and reciting that tbe said Sims bas been appointed to the office of assistant quartermaster, and conditioned for tbe faithful discharge of tbe duties of said office by tbe said Sims, in accounting for and paying over all money, property, &e., to wbicb is appended an affidavit by said Ayres and Carhart, verifying their signatures, and justifying as to property.

“Also an article of agreement dated tbe day of , 1862, between Asher Ayres, of tbe one part, and Captain Bichard M. Cuyler, on behalf of tbe Confederate States of America, of tbe other part, duly signed by the respective parties aforesaid; in and by wbicb it is covenanted and agreed that, for and in consideration of tbe sum of $1,400, said Ayres agrees to lay all tbe bricks required for two furnaces, chimney, core-oven, and wall attached to said furnaces, in tbe Macon Arsenal, and to furnish all mortar and sand necessary to complete tbe work, in tbe opinion of tbe engineer in charge of said work.”

What purport to be tbe original bond and contract are produced, but none of tbe subscribing witnesses are called to prove the execution of the papers. In lieu thereof the special counsel for the United States makes affidavit as follows:

u This deponent believes and hasno doubtthat the signatures to said bond, affidavit, and article of agreement are the genuine signatures of the said Asher Ayres, claimant, and that he will be able so to prove the same; and that the said Charles C. Sims served as such assistant quartermaster in the army of the Confederate States of America, so called, in carrying on war against the United States, under and by means of the said official bond above named.”

On the hearing of the motion for a new trial, the claimant’s counsel objected to the competency and sufficiency of the evidence offered to sustain it, because the bond and contract offered contained subscribing witnesses, who had not been called to prove their execution, nor any legal excuse given for admitting them, upon other proof of execution. Nor was the execution proved in any way by any competent testimony.

A majority of the court think that for the purposes' of this motion the proof is sufficient. It is of the kind and character admitted by courts on hearing of motions for a new trial. And in the absence of any affidavit or proof by the claimant denying the execution or impeaching the instruments as genuine, we must hold the testimony presented as making out a grima, facie case.

The case is not substantially different from that already decided by the court in the case of Tait for Browning v. The United States, (ante.) There we held proof of this kind sufficient. And also, that similar acts alleged in that cáse entitled the United States to a new trial under the provisions of the statute. We. think, too, here that the facts are grima facie made out by the papers and affidavits presented; and that they are such as entitle the United States to a rehearing of the case.

A new trial is awarded.

Milligan, J.,

dissenting:

I regret that I do not entirely concur with my brother judges in the decision of this case.

The statutory provision under which this motion is made is /altogether anomalous, and wholly unlike anything I have heretofore observed in judicial proceedings, and must receive a strict construction.

It is obvious, when tbe appeal was taken in this court to the Supreme Court of the United States, that the Court of Claims eo instanti lost jurisdiction over the cause 5 and to my mind it is equally clear, the moment the motion was made here on behalf of the United States for anew trial, ipso facto, that motion ousted the Supreme Court of jurisdiction, and transferred the cause to this court.

In this view of the case, I think the, cause now stands here, by the election of the United States, to all intents and purposes as it did before the appeal, but with a motion for a new trial after final judgment on the merits, and the close of the term at which it was rendered.

Ordinarily such a motion would not be entertained for a single moment, but the statute makes it imperative on this court to entertain it, if made within the time limited by the act, notwithstanding the term has closed, or the court has lost jurisdiction by appeal.

The ex parte affidavits on which the motion is made, I think, are sufficient to obtain the rule to show cause why the judgment should be opened, and a new trial granted, but when they have subserved this purpose, they cannot be used for any other. If the case was like an ordinary motion for a new trial, the rule would be otherwise; but, as already stated, it is wholly different, and stands alone, outside and beyond all proceedings of the kind at common law, and must be governed by the strict letter of the statute itself..

Before we can grant a new trial in this case, we must, by the terras of thestatute, be reasonably satisfied “upon such evidence,” (although the same may be cumulative or other,) that “fraud, wrong, or injustice in the premises has been done to the United States.”

The delicate duty of investigating fraud, wrong, and injustice is devolved on the court by this motion, and that investigation by the terms of the statute is rested on uevidence ” which has a technical meaning, that certainly does not include ex parte affidavits.

The judgment is founded on legal evidence, and now we set it aside, on evidence so-qalled, read under objection, which could not have been admitted on tbe original bearing, which I do not think we are authorized to admit under the statute.

The establishment of such a rule of practice in this court does not appear to ine to be just to the claimant, or in harmony with the extraordinary provisions of the statute. The judgment confers on him the right of property, and this is a judicial proceeding to show that right was obtained by fraud, wrong, or injustice to the United States, and this court opens the judgment on one or all of these grounds on ex parte affidavits, taken without cross-examination, and the introduction of papers showing his complicity with the rebellion, but which are not proven according to' law, so as to give the dignity of evidence.

It is said, however, that the statute makes no provision for taking depositions on this motion, or proving the execution of papers offered in evidence according to law; and of necessity the whole proceedings must be ex parte and preliminary, leaving the parties free on the second hearing to present their testimony authenticated according to law.

I do not concur in this view of the statute. It is true the act of Congress does not provide in terms for notice of this motion, or for the taking of depositions to sustain it; but it requires the judgment to be overthrown by “evidence” of fraud, wrong, or injustice to the United States, which, ex vi termini, means legal evidence, and that cannot be obtained under the rules of this court, except in the regular mode therein pointed out. For this reason I am unable to concur in the opinion of the majority of the court.

Peck, J., did not sit in this case, and took no part in the decision.  