
    Moses Neal et al. v. The United States.
    
      On the claimants’ Motion.
    
    
      The caséis tried and judgment rendered in favor of the defendants. (Ante, p. 281.) Subsequently the claimants come in and move the court to find certain additional facts not ashed for by them on the trial.
    
    I.Where a case has "been regularly tried and the facts have been found by tlie court in the prescribed way, a party after judgment cannot move for other or additional findings. He should move' for a rehearing, upon the ground that injustice will be done if such additional facts be not found.
    II.Additional facts ashed for on a motion for a rehearing will not be allowed if clearly they will not affect the result, or if the counsel with grounds for anticipating the finding of the court neglected to ask for the finding which he now seeks.
    III. Under the present rules, counsel are expected to suggest in their requests for findings all the facts which they regard as proven and material. At the trial, they may suggest further facts, deemed material either in consequence of the requests of their opxionents or of developments made at the trial.
    IV. AVith the trial, the rights of counsel over the findings of fact cease and those of the court begin.
    
      
      The Reporters’ statement of the case:
    The case was tried at the December term, 1877, and a provisional finding of facts filed by the court under the former • rules; but no judgment was rendered, and, on the contrary, a further hearing was ordered. On the last trial the requests of counsel were presented at the time under the present rules, and judgment was subsequently rendered by the court, and its findings of fact were then filed. (See ante, p. 281.) The following is the motion now filed by the claimant:
    
      u The court having varied the statement of facts widely from ■ what was asked or anticipated by the claimants, it is deemed material in connection with the facts found, in order to a just presentation of the case for review by the appellate court, that the following additional facts be found; and the claimants, by ' their solicitor, Harvey Spalding, pray the court to find the same as follows:
    “ XN. The transportation trains which the claimants had at Wichita, mentioned in Finding XI, were disbanded at the time stated because there was not freight sufficient offered to load one train of twenty teams, and because the claimants then knew or were informed that they were to have no use for the men and teams congregated at Wichita, and because there was no place known to them where they could be employed.
    
      “ XXI. Said transportation trains were of a carrying capacity of 480,000 pounds, and the time to make a round trip from Wichita to the agencies did not on the average exceed forty days.
    
      u XXII. The cost per day of operating all of said trains and teams was about $120, divided as follows: Subsistence of 74' employés, about 50 cents per day each; pay of one road agent, $125 per month; 3 wagonmiasters $100 jmr month each; pay of 3 assistant wagon-masters, $60 per month each; pay of 61 teamsters, 3 extra hands, and 3 night herders, $25 per month each.”
    ' HARVEY SPALDING-,
    
      Solicitor.
    
   Davis, J.,

delivered the opinion of the court:

This motion sets forth that the court has in its findings widely varied the statement of facts: 1st; from what was asked by the claimants; and, 2d, from what was anticipated by them The counsel moves the court, in consequence, to And certain other facts, which the claimants think are shown by their evidence and which they deem material to have presented in connection with the facts which we have found, in order to a just presentation of the case for review in the appellate court.

It would be sufficient answer to this to say that the court should not grant the motion without the consent of the defendants.. The case has been tried in the manner prescribed by law and by the rules of the Supreme Court and of this court, judgment has been rendered, and rights have been acquired which the court can set aside only on motion in the regular way.

We see no' objection, however, to considering this as a motion in form for a new hearing, as it certainly is in effect, and in stating the reasons why it could not be granted as such.

The allegation that the facts as found vary from those requested by the claimants is quite true. If this is good cause for a rehearing, the defendants would have had like good cause if we had found the facts as the claimants asked. The requests of counsel aid the court, but they do not excuse it from an independent examination of the evidence, or from the duty of deducing the facts from original sources, and they certainly do not bind it to adopt the views of either side as' the results of the proof.

The learned counsel probably' does himself some injustice when he says, in the second place, that the facts as found vary widely from his anticipations. This case has been twice elaborately tried. At the second trial the court was assisted in its analysis of the facts by its Anding at the former trial and by the requests of counsel on both sides. It made its Anding on the points to which the motion refers partly by adopting the views (and almost the language) of the former Anding and partly by adopting a clause from the defendants’ requests. The learned counsel was therefore put upon his guard both by the action of the court at the former trial and by the defendants’ requests. If he desired us, in case of pursuing the course which we did pursue, to And still other facts which he deemed material, he should have called attention to them. A case should be tried when it is on trial, not after the rendition of judgment.

But although the counsel was clearly in fault in this respect,, we should not feel disposed to send his clients out of court without a remedy if we felt that they had received au injury. We said recently, in the motion for a new trial in Calhoun’s Case, and we repeat it, that although we cannot recognize the abstract right of a party to a new trial on the ground of mistake of fact, we shall always, when convinced of such a mistake, be ready to rectify it while we have control of the judgment. In the present case, if all the findings which the claimants ask now to have found had been incorporated in the findings of the court, it would have made no difference in the result, for the following reasons:

1. The motives which induced the claimants to disband their transportation at Wichita are unimportant, because the disbanding is found to have been their voluntary act. In estimating the amount for which judgment was rendered, they were allowed for the keeping of the outfit up to the time when it was disbanded. That is all they could claim under any circumstances.

2. The actual carrying capacity of one of their trains became unimportant when the court found, as it did find in the 11th finding, that the claimants had brought to Wichita full means for the performance of the transportation required by said contract.”

3. The per diem, cost of operating a train is a question that was virtually settled between the claimants and the defendants in the transactions which took place at the Treasury before the commencement of this suit.

Thus all the facts which the claimants on rehearing would try to incorporate into the findings, for the purpose of modifying or controlling some of the facts found, are shown to be either immaterial or inadmissible. Treating this as a motion for a new trial, we should be constrained to deny it.

Under the new rule, counsel are expected to suggest in their requests for findings all the facts which they regard as proved and as material. At the trial each has an opportunity not only to present arguments in support of his own theory, but also to combat the views of his opponent and to suggest further facts which he may deem material, either in consequence of the requests of his opponent or from developments made at the trial.

There the rights of counsel over the facts cease and the duties of the court begin. The court would not be true to itself if it did not express its diapprobation of proceedings like the present motion, and its expectation that counsel will exercise their ingenuity and. learning at tbe trial, rather than after the entry of judgment, to assist us in reaching correct conclusions about disputed facts. The bar is more interested than the court in securing a uniform intelligent practice in these respects based upon a faithful adherence to rules.

The motion must be denied.

Drake, Oh. J., was absent when this case was heard and took no part in the decision.  