
    (13 Wallace R., p. 664.)
    John H. Russell v. The United States.
    
      On ihe claimants application ex parte for Mandamus.
    
    
      The claimant recoven a judgment in ihe Court of Claims. The Government appeals. Tending the appeal in the Supreme Court, the Government files a motion in ihe Court [of Claims (under the Act 25th J une, 1868) for a new trial. Tending ihe motion in the court below, the Government proceeds on its appeal in the court above, and submits it on final argument. The Sipreme Court affirms ihe judgment of the Court of Claims. After the decision is announced, but before the mandóle issues, the motion is argued before four judges. After the mandate is filed, a majority of the judges, including one ■who did not hear the motion, order a re-argument before a full bench; but two of ihe four dissent, holding that as ihe judges u-ho heard the motion are equally divided, it should be overruled. On the rehearing, the motion is dismissed for want of jurisdiction : 1st, because of ihe mandate commanding the court to enforce the judgment; 2d, because two of ihe four judges before whom ihe motion was originally argued have rendered their decision that it be denied on the merits. ■J?rom this, the Government appeals, and the Court of Claims grants the allowance prescribed by the rules of ihe Supreme Court. Thereupon the claimant moves to vacate ihe allowance. The Court of Claims denies ihe motion. The Secretary of the Treasury ref uses lo pay the judgment. The claimant now moves in the Supremo Court for a mandamus in aid of its own jurisdiction, and to compel the Court of Claims lo vacate the allowance of the appeal.
    
    I. Tli® Court of Claims lias jurisdiction of a motion by tlie Government for a new trial, under tlie Act 25th Tunc, 1888, (15 Stat. L., p. 75, § 2,) after the judgment in the caso lias been affirmed on appeal, aud the mandate of the Supremo Court has gone down and been filed. The motion is analogous to a bill of reviow in chancery to set aside a former decree, or to a bill impeaching a decree for fraud. Chase, Ch, .T., and. Clifford, J., dissenting.
    
    II. In the Act 25th June, 1868, (15 Stat. L., pi. 75, § 2,) which enacts that the Court of Claims “at any time while any suit” “is pending before or on appeal from said court, or within two years next after the final disposition of any such suit,” “may on motion on behalf of Ihe United States grant anew trial,” and “slay-the payment of any judgment,” the words “final disposition” extend to the final disposition of a suit by the Supreme Court on appeal. Chase, Ch. J'., and Clifford, J., dissenting.
    
    III. That a court was equally divided on the first hearing of a motion for a new trial, is no reason for not proceeding- to.hear it on the merits, after an order for a rehearing- has been made.
    
    IV. Mandamus and not appeal is the remedy when an inferior court refuses for supposed want of jurisdiction to hear á motion for a now trial on the merits which it is legally "bound to hear. Writ of error or appeal does not lie where the inferior court merely declines to decide a case, unless there be a final judgment to be reviewed.-
    V. Mandamus will not lie to compel an inferior court to vacate its allowance of an appeal; for that would be the use of the" writ to compel the inferior-court to decide a case in a particular manner.
    "VI. So soon as an appeal from an inferior court to the Supreme Court is effectively taken, i. e., so soon as the inferior court grants its allowance of the appeal, the court below loses jmssession of the case, and it comes within the control of the Supreme Court, although the record has not been sent up, and although the matter appealed from was the refusal of the inferior court to hear a motion for a new trial.
    VII. A party wishing- to move the dismissal of an appeal in the Supreme Court is not obliged to await the term-to which the record is returnable. Ho may move a-t any time when the court is in session, provided the ■ question can be properly presented. But i't may be necessary for him to procure the record from the court below, and have it printed.
    Tlie claimant moved on bis own affidavit, which among other ■things stated:
    This affiant farther states that on the 21st and 22d of November, 1871, and after the affirmance of said judgment by the Supreme Court, the motion for a new trial hereinbefore referred to, and a motion on the part of the defendant, to stay the payment of the judgment, were argued and submitted in the said Court of Claims; the said motions having been argued in said court before four of the judges thereof; and that on the 11th of December, 1871, the Assistant Attorney-General, on behalf of the defendant in said cause, filed a motion to remand the said motion for a new trial to the law-docket for re-argument.
    This affiant further states that on the 12th day of December, 1871, the mandate from the Supreme Court in said cause, bearing date November 27,1871, affirming the said judgment of the said Court of Claims, was filed in said court, in open court.
    This affiant further states that on the 13th of December, 1871, Chief Justice Drake, of said Court of Claims, announced the opinion of the court, granting a re-argument of the motion for a new trial before a full bench, Judges Peck and Nott dissenting, and the latter delivering an opinion, in which said two judges held, that inasmuch as the motion for a new trial had been argued before, and submitted to four of the judges, and inasmuch as the said judges were equally divided, the said motion for a new trial should be overruled; and that on the 19th day of December, 1871, the said motion for a new trial was ordered to be placed on the law-docket for argument for January, 1872.
    This affiant further states that on the 29th day of January, 1872, after argument, the said Court of Claims “ordered that the said defendant’s motion for a new trial be dismissed for Avant of jurisdiction; 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 on the merits.”
    
      Mr. William Penn. Clarice for the motion.
    Appeals from the Court of Claims are only authorized in cases of final judgment.
    
    The term “final judgment,” used in the statutes, does not mean the last act or order of the court in acause, but that decision which determines the right of the parties, and virtually settles the litigation. — (2 Burrill’s Law Die., 106.)
    A motion to grant a new trial is addressed to the sound discretion of the court, and the action of the court thereon cannot be assigned as error, and Avill not be considered by the appellate tribunal.
    The allowance of the appeal is a Adolation of the mandate of the Supreme Court.
    The inferior court is bound to obey the mandate of the Supreme Court, and must carry it into execution. — (Esparte Idbbald, (12 Peters, 488;) fix parte Story, (12 Peters, 339;) Sled 
      
      iem’s Ex’rs v. May, (6 Orancb, 267;), Chaires18 Ex. v. Miranda,. (3 Howard, 611;) West v. Brashear; (14 Peters, 51;) CWc v. Burnley, (11 Wallace, 672;) Ex parte Dubuque and Pacific B. B., 1 Wall., 69.
    The case last above cited is analogous to the case made ou the motion now before the court.
    The case was not “ pending on appeal from said court,” when, the motion for a new trial was argued, and the court properly overruled the motion. Its jurisdiction over the cause terminated when the mandate of this court, showing that the judgment had been affirmed, was filed in that court, except so far-as its action was required to carry the judgment into execution. And the cause not being pending there, the court had no power to grant the allowance of an appeal.
    The allowance of the appeal'in a case not warranted by law,, and in violation of the mandate of this court, and the refusal of the court to vacate said order, furnish an excuse to the Secretary of the Treasury to refuse to pay the judgment, and thus-work injury to the claimant.
    
      
      But this was not tlie question that arose in the Court of Claims. The point was whether there was a valid order for a rehearing; i. e., whether the diverse action of the judges resulted in" an order for a rehearing, or in a denial of the motion. The proposition that the Supreme Court now establishes, viz, that a court which had granted a rehearing would then have jurisdiction to hear the motion on the merits, was one never doubted or supposed to be involved.
    
   Mr. Justice Bradley

delivered the opinion of the court:

It appears from the affidavit and exhibits on which this motion is based, that in October,. 1S67, Bussell filed a petition in the Court of Claims to recover from the United States compensation for the use of certain steamboats, and that he obtained a judgment for $41,355.33 on the Gtli of December, 1869; that afterward an appeal was taken to this court on behalf of the United States, and the judgment of the Court of Claims was affirmed on the 20th of November, 1871; that pending the appeal, the counsel for the United States applied to the Court of' Claims for a new trial, but the motion was not argued until after the decision of the case here on. the appeal, though it was argued before the mandate was issued; that the motion for a new trial failed by an equal division of the court; that the mandate from this court was filed in the Court of Claims on the 12th day of December, 1871, and on the next day that court ordered a rehearing of the motion for a new trial; and that, on the 29th of January, 1872, the Court of Claims dismissed the motion for a new trial as for want of jurisdiction, on the ground that, after it was made, the mandate 'of the Supreme Court had been filed affirming the judgment, and also on the ground that the motion had failed on the prior hearing by an equal division of the court. From this last decision the counsel for the United States appealed to this court, and the appeal was allowed by the Court of Claims. Thereupon the claimant moved that court to vacate the allowance of the appeal, but the court refused to do so. He now moves this court for a mandamus to compel the Court of Claims to vacate its order allowing the apxieal; and the grounds on which the application is made are, first, that an appeal does not lie from an order refusing amew trial, because it is not a final judgment; secondly, that the granting of a new trial rests in the discretion of the court; and thirdly, that the allowance of the appeal was a violation of the mandate of this court.

We think that the Court of Claims erred in dismissing the motion for a new trial as for want of jurisdiction; that the counsel for the United States mistook their remedy in appealing from that decision ; and that the claimant has equally mistaken his remedy in -applying for a mandamus to vacate the allowance of the appeal.

The difficulty has arisen out of the anomalous provisions of the second section of the act of June 25, 18CS, which enacts as follows:

“That the 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 in 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 a judgment, the same shall be payable, and paid as now provided by law.” •

The policy of this act was undoubtedly dictated' by the fact that the Government agents are at a great disadvantage in defending suits in the Court of Claims on account of their personal ignorance of the facts, and of the witnesses and evidence necessary to rebut the petitioner’s case; for all which they have to depend on distant and uninterested parties, or parties whose sympathies, and, perhaps, whose interests, are with the claim¡uits, while the claimants have had years to prepare and get up their cases, aud to select the most favorable proofs to sustain them. From these causes, no doubt, the Government is ■often greatly defrauded, and claims are proved and adjudged against it which have really no just grounds, or which have long since been settled and paid. But whatever reason Congress may have had for passing the act, of its right to pass it there is no question. The erection of the Court of Claims itself, and the giving to parties the privilege of suing the Government therein, though dictated by a sense of justice and good faith, were purely voluntary on the part of Congress; and it has the right to impose such conditions and regulations in reference to the proceedings in that court as it sees fit.

The sectiou in question was undoubtedly intended to give tbe Government an advantage, which, in respect to its form, is quite unusual, if not unprecedented, but which Congress undoubtedly saw sufficient reason to confer. It authorizes the Court of Claims, ou behalf of the United States, at any time while a suit is pending before, or ou appeal from, said court, ■or within two years next after the final disposition of such suit, ■to grant a new trial upon such evidence as shall satisfy the ■court that the Government has beeu defrauded or wronged. The question is, what is meant by the final disposition of the suit from which the two years of limitation is to date? And it seems to us there is hardly room for a doubt. Looking- at the words in their collocation with the previous words, it seems ■evident that the final determination of the suit has reference to its final determination on appeal, (if an appeal is taken,) or, if none is taken, then to its final determination in the Court of Claims. The natural meaning of the words leads to the same conclusion. The final determination of a suit is the end of liti.gation therein. This cannot be said to have arrived as long as an appeal is pending. Neither the existence nor the determination of the appeal interferes with the right, on the part of the ■Government, to apply for a new trial; and, of course, the mandate from this court cannot affect it.'

It has been objected that the granting of a new trial after a decision by this court is, in effect, an appeal from the decision' of this court. This would be so if it were granted upon the same case presented to us. But it is not. A new case 'must .be made; a case involving fraud or other wrong practiced upon the Government. It is analogous to tbe case of a bill of review in chancery to set aside a former decree, or a bill impeaching a decree for fraud.

We are of opinion, therefore, that the Court of Claims had jurisdiction to grant anew trial, notwithstanding the filing of the mandate of this court.

The other ground on which the court dismissed the motion, namely, that on the first hearing the court was equally divided, was no valid reason for not proceeding after an order for a rehearing had been made.

The next question is as to the proper remedy of the counsel for the United States upon the dismissal of their motion. To us it seems clear that they should have applied to this court for a mandamus. An appeal was not the proper remedy. The Court of Claims did not reach the consideration of the motion for a new trial on its merits ; but stopped short of that point by reaching the conclusion that, under the circumstances, they had no jurisdiction to entertain the motion, and therefore they dismissed it. The onl-y proper remedy, therefore, which was left to the United States was to move for a mandamus to direct the court to proceed with the motion. Where a court declines to hear a case or motion, alleging its own incompetency to do-so, or that of the party to be heard, mandamus is the proper remedy. A writ of error or appeal does not lie; for what has' the appellate court to review where the inferior court has not decided the case, but has refused to hear it ? Where a final judgment or decree to which a writ of error or an appeal can be taken is based on a supposed want of jurisdiction, that question, as well as other questions, may be examined by the-appellate court. Bub that, as we have shown, is not the case here.

If this view as to the proper course of proceeding is correct,, it follows that the appeal taken by the counsel for the Government was not well taken, and that this court would dismiss it upon proper application here.

But we cannot grant a mandamus to {he Court- of Claims to cause them to vacate their allowance of the appeal. That would be to use the writ for the purpose of compelling the inferior-court to decide a case or question in a particular manner. If we should grant a mandamus in the case at all, it would be-adverse to the claimants, namely, a mandamus to vacate the-allowance of the appeal and to proceed with the hearing of the motion for a new trial. Perhaps, on the principle of going’ back to the first error,- we might do this; especially, as by their appeal, the defendants, though not in the proper mode; have asked us to do substantially the same thing by reversing the order dismissing their motion for new trial.

However, since the appeal has been actually allowed, and the court below has thus lost possession of the case, and as it is now within the control of ‘this court, we think the more orderly and proper course would be for.one or the other party to move to dismiss the appeal, and for the counsel of the United States, if they see fit, to move for a distinct mandamus to require the Court of. Claims to proceed. A motion to dismiss the appeal where it has-been improperly allowed is an adequate remedy, and this is an additional reason why a mandamus commanding the court below to vacate the allowance thereof should not be granted.

It is suggested that a party wishing to move the dismissal of an appeal is obliged to await the arrival of the term to which the record ought to be returned, which occasions great delay. But as the case is virtually in the possession and subject to the control of this court as soon as the appeal is effectively taken, we see no reason why the appellee should not, at any time when the court is in session, apply to have the appeal dismissed, provided the question can be properly presented to the court. Of course the court would not hear the motion without having the record before it; but that could be procured and presented by the app.ellee.as is done where the appellant has failed to have the record- filed in due time. In many cases the court might decline’ to Hear the motion until the-record were printed; but that could'also b.e done by the appellee, if he desired to have a spe.edy hearing of the matter. Unless some unforeseen inconvenience should arise from the practice, we shall not refuse to hear a motion to dismiss before the term to which, in regular course, the record ought to be returned. It would be likely to prevent great delays and expense, and further the ends of justice.

The motion for mandamus must be denied.

If the counsel for the United States desire to dismiss their appeal and ask for a mandamus to the Court of Claims to proceed with the motion for a new trial,.it will be granted.

But probably counsel will be able, in view of tbe suggestions now made, to come to some mutual arrangement by which further process or delay may be avoided. .

Mr. Chief Justice Chase :

I dissent from the opinion of the court, because I think the act of Congress does not warrant the granting of a new trial on a'petition filed subsequent to an appeal and the return of the mandate from the court.

Mr. Justice Clippobd

concurs in this dissent.

N. B. — After this decision was announced, the Government applied to the Supreme Court for a mandamus. The application having been heard, a peremptory mandamus was allowed requiring the judges of the Court of Claims to hear the motion for a new trial. This happening on the last day of the term, no opinion was delivered, nor has one yet been filed.  