1. The Act of March 3, 1863, concerning the Court of Claims,
confers a right of appeal in cases involving over $3,000, which the
party desiring to appeal can exercise by his own volition, and
which is not dependent on the discretion of that court.
2. When the party desiring to appeal signifies his intention to
do so in any appropriate mode within the ninety days allowed by
that statute for taking an appeal, the limitation of time ceases to
affect the case, and such is also the effect of the third rule of
the Supreme Court concerning such appeals.
3. It is no ground for dismissing such appeal that the statement
of facts found by the Court of Claims is not a sufficient
compliance with the rules prescribed by the Supreme Court on that
4. But the Supreme Court will, of its own motion, while
retaining jurisdiction o� such cases, remand the records to the
Court of Claims for a proper finding.
5. A finding which merely recites the evidence in the case,
consisting mainly of letters and affidavits, is not a compliance
with the rule; but a finding that a certain instrument was not made
in fraud or mistake is a proper finding without reporting any of
the evidence on which the fact was found.
These were three motions: the first two to dismiss appeals from
the Court of Claims, one in the case of Adams, and one in the case
of Johnson; the third, in the case of Clark, a motion for a
certiorari designed to require that court to make a more extended
statement of the evidence on which they had made a particular
finding. The motion in the first two cases resting on more grounds
than one; in the third, on one ground only.
To understand the cases well, it is necessary to refer to the
statutes and rules which regulate appeals from the Court of Claims.
An Act of March 3, 1863, provides that
"Either party may appeal to this Court &c., where the amount
in controversy exceeds $3,000, under such regulations as the
said Supreme Court may direct: provided
that such appeal shall
be taken within ninety days after the rendition of such judgment or
Page 73 U. S. 102
At the December Term 1865, the Supreme Court prescribed certain
regulations by which appeals might be taken.
The first rule prescribes that the Court of Claims shall make a
finding of the ultimate facts
or propositions which the
evidence shall establish, in the nature of a special verdict, and
not the evidence on which these ultimate facts are founded, and
also conclusions of law, which findings of fact and conclusions of
law shall be certified to the Supreme Court as part of the
The third rule prescribes that
"In all cases an order of allowance of appeal by the Court of
Claims or the chief justice thereof, in vacation, is essential,
and the limitation of time for granting such appeal shall cease
to run from the time an application is made for the allowance of
The forty-eighth rule of the Court of Claims provides that
"Whenever such application for an appeal is made in vacation,
the same shall be filed with the clerk of this Court, and such
filing shall be deemed the date of the application for an
The Act of March 3, 1863, provides
"That the said Court of Claims shall hold one annual session,
commencing on the first Monday in October in each year, and
continuing as long as may be necessary for the prompt disposition
of the business of the court,"
and an Act of March 17, 1866, "that the regular session
of the Court of Claims shall hereafter commence on the first Monday
of December, in each year."
In this state of statutes and rules, judgment was rendered by
the Court of Claims in the case of Adams
in his favor on
the 19th March, and in the case of Johnson
on the 25th.
The court adjourned on the 20th of May to the 25th of June. On the
10th of June, the solicitor of the United States for the Court of
Claims, Mr. Norton, filed in the office of the clerk a paper in the
case of Adams
of which the following is a copy:
"Theodore Adams v. United States"
"The United States, by E. P. Norton, its solicitor, makes
application to the Honorable Court of Claims for an appeal of
Page 73 U. S. 103
case of Theodore Adams v. United States
to the Supreme
Court of the United States."
"E. P. NORTON"
"Solicitor for the United States"
A similar paper was filed in the case of Johnson at the same
time. On the first day that the court was in actual session,
to-wit, on the 25th day of June, the solicitor moved for an
allowance of these appeals, and on the next day the court made an
order allowing them. The order was thus made more than ninety days
after the judgments were rendered.
In these two cases, therefore, grounds of motion to dismiss
1. Because the appeal must be taken within ninety days after the
rendition of the decree, and in this case the said period has
2. Because the taking of an appeal in cases decreed by the Court
of Claims consists of two things: 1st. Of an application for an
appeal, which may be made to the court in term time, or by filing
an application in the method prescribed by the rules when made in
vacation. 2d. Of an allowance of the appeal so applied for by the
court, and that both the application for and the allowance of the
appeal must be made within the said term of ninety days from the
rendition of the decree.
3. Because the application made for an appeal in this case, and
filed in the clerk's office June 10, 1867, is irregular and void,
having been made in term time, and not in vacation, as contemplated
by the rules of court.
And in all three of the cases an additional ground was assigned,
That the record had not been made up and settled, as the first
rule of the Supreme Court, made at December Term 1865,
As to this part of the matter it appeared:
1. In the Adams case,
that the findings were put under
twenty different numbered paragraphs; that under one of
Page 73 U. S. 104
them, a joint resolution of Congress was set out in full, and
under others, parts of acts of Congress. Withal, the finding made a
sequent, orderly and intelligible statement, and was comprised
within less than six pages 8vo, chiefly of small pica type.
2. In the case of Johnson,
the form of finding was
different. Somewhat less than two pages were occupied with
narrative and clear account of a settlement by him upon valuable
and unoccupied public lands in Washington Territory, where he
erected buildings, which the government of the United States,
operating against hostile Indians, had taken to its own use. But
the rest of the finding consisted of nine pages of government
correspondence from the Land Office, Department of the Interior,
Register's Office at Vancouver, with various affidavits from
settlers and others, a joint resolution of Congress, and many other
documents, about twenty in all, set out in extenso,
signatures &c., with very little in the nature of a finding of
facts. It ended with a succinct statement of the
court's conclusions of law, on what was called "findings of
3. In the case of Clark
-- where the motion was for a
to require the Court of Claims to make a more
extended statement of the evidence on which they found -- no
documents or evidence were set out. On the contrary, the petition
having set forth that the petitioner having agreed by
correspondence, with its authorized agents, to furnish to the
government a certain quantity of potatoes in a certain manner, the
government agents had afterwards prepared formal articles of
agreement, which he signed without advice of counsel, and not
knowing at the time but that they truly and fairly stated the
actual agreement of the parties, and that the contract was not
truly stated in the articles, but by mistake or fraud was misstated
-- the finding on this head ran thus:
"That the allegations of fraud or mistake in the concoction of
the written agreement is not sustained by the evidence in the case.
Page 73 U. S. 107
MR. JUSTICE MILLER delivered the opinion of the Court.
Motions are made in the case of United States v. Adams
and of the Same v. Johnson
to dismiss the appeals, upon
the ground that they were not taken within the ninety days to which
the act of Congress limits the right of appealing from the
judgments and decrees of that court.
The fifth section of the Act of March 3, 1863, under which the
proceedings in appeal were had, enacts that
"Either party may appeal to the Supreme Court of the United
States from any final judgment or decree which may hereafter be
rendered in any case by said court wherein the amount in
controversy exceeds three thousand dollars under such regulations
as said Supreme Court may direct, provided
appeal shall be taken within ninety days after the rendition of
This language implies that taking an appeal is a matter of
right, and is something which the party, as distinguished from
court, may do. When the court has rendered its judgment, "either
party may appeal" -- that is, has the right to appeal, and may
exercise that right by his own volition. The court cannot prevent
it, nor is the right dependent upon any judicial discretion.
So also the language of the proviso is to the same purport. The
appeal is to be taken within ninety days, not granted or allowed or
permitted, but taken -- a word which implies action on the part of
the appellant alone. So that whatever the proceeding may be which
constitutes appealing or taking an appeal, it must be something
which the party can do, and it would seem that no regulation of the
Supreme Court nor any judicial discretion of the Court of Claims
can deprive him of the right, though the former may frame
appropriate rules in accordance with which the right must be
exercised. [Footnote 1
Page 73 U. S. 108
We consider the paper filed by the solicitor in the office of
the clerk of the court as sufficient in form to indicate the
intention to exercise this right. It is addressed to the court,
refers properly to the case, claims an appeal, and calls upon the
court to take the action which the rules prescribed by the Supreme
Court require of it.
But it is claimed that the rule so prescribed has not been
complied with, and therefore the appeal is not taken within time.
The third rule, the one here referred to, is this:
"In all cases, an order of allowance of appeal by the Court of
Claims or by the chief justice thereof in vacation is essential,
and the limitation of time for granting such appeal shall cease to
run from the time an application is made for the allowance of
The language of the rule would have been more technically
accurate if the word "taking" had been used instead of "granting,"
but the latter word is used in the rule to express the idea
conveyed by the former in the statute.
To understand why the Supreme Court required an allowance of the
appeal by the Court of Claims, it is necessary to consider the two
rules which precede this. A statute passed a year or two after the
one we have been considering gave the right of appeal in cases
where judgments had been rendered long previous to its passage. In
framing rules upon this subject, the Supreme Court determined that
these rules should be so drawn that only questions of law could be
brought here for review. The first rule provided that the party
desiring to appeal, in cases decided before the rules were made,
should present his petition to the Court of Claims, setting forth
the questions of law decided against him which he desired to have
reviewed, and that court was required to certify what had been its
rulings on those questions. By the second rule, the court was
required, in all appealable cases thereafter decided, to make a
finding of facts, and of their conclusions of law thereon, and make
it a part of the record.
It is obvious that in both of these classes of cases it was
proper that the attention of the court should be called to the
Page 73 U. S. 109
taking of an appeal, and that it should not be treated as
perfected until that court had prepared the statement of facts or
the statement of its rulings on questions of law which these rules
prescribed. If something of this kind had not been required, the
appeal might have been taken and the record filed in this Court
before the rule had been complied with.
But that the delay in doing this might not prejudice the party
desiring to appeal, the rule expressly provides that the statute of
limitations shall cease to run from the time the application is
made. In other words, the framers of the rule, treating the appeal
as taken within the meaning of the statute when the application is
made for its allowance, provide that the delay in making out a
proper statement of facts and judicial rulings and then allowing
the appeal (which C.J. Taney says, in Hudgins v. Kemp,
merely an authority to the clerk to transmit the record"), shall
not operate to defeat the appeal.
Much minute criticism has been expended on the question whether
the adjournment of the court from May to June was a vacation within
the meaning of the rule, and whether the application should have
been made to the court or to the chief justice. The rule says the
allowance may be made by the court, or, if there is a vacation, by
the chief justice, but it does not prescribe the form of the
application or how or to whom it shall be made. We think that
whether done in vacation or in session or during a temporary
recess, the rule adopted by that court of requiring the application
to be made by filing it with the clerk is a very proper one.
We are therefore of opinion that the filing of this paper was
taking the appeal, and that the delay in the subsequent proceeding
to render it effectual do not touch its validity.
Another ground for the motion to dismiss these cases is that the
statement of facts found by the court, and their conclusions of law
thereon, are not a sufficient compliance with the rule of the
Supreme Court on that subject. It is said that the statement of
facts is a mere recital of the evidence, and not the results of
evidence as found by the court.
Page 73 U. S. 110
Conceding for the present that these records are fairly liable
to the objection made, does it follow that for this reason the
appeals should be dismissed?
In discussing the first ground on which the dismissal of these
cases is claimed, we have seen that an appeal is a right given to
the party by the statute of which the Court of Claims cannot
deprive him. It would be a violation of this principle if this
Court should refuse to consider his appeal because the Court of
Claims has erred in its attempt to comply with a rule of this Court
prescribing the character of the record to be sent here.
If the Court of Claims had made no attempt to comply with this
part of the rule, we do not perceive how that would deprive this
Court of its jurisdiction of the case or the appellant of his right
to be heard. In such case, there is undoubtedly in this Court, as
in all appellate courts, a means of enforcing compliance with the
rule without permitting its jurisdiction or the rights of appellant
to be defeated. But there is no such case here. The Court of Claims
has made a finding of facts and conclusions of law, and has shown
its intention to comply in good faith with the rule of this Court.
Whether it be a sufficient compliance or not is a question which
does not affect the jurisdiction of this Court, and is no ground
for dismissal of the cases. The motions to dismiss are therefore
The rule above referred to, however, was made for the protection
of this Court as well as to secure a finding of facts by a tribunal
which must of necessity inquire into them fully, and which, having
ample time and being otherwise every way competent, may be relied
on to find them truly. In consequence of the suggestions of counsel
in these cases and in several others said to be in the same
category, we have examined into the statement of facts certified to
us to see if the rule is complied with. In all that we have
examined except the two named at the head of this case, [Footnote 2
] the statement is free from
objection. In the case of United
Page 73 U. S. 111
States v. Adams,
the propositions of fact are stated
more in extenso
than is either necessary or desirable, and
are subdivided into a greater number of distinct propositions than
are useful or conducive to clearness.
There are also certain acts and joint resolutions of Congress
found as facts, of which this Court must take judicial notice,
which are therefore in no sense facts to be found.
But after all, there is within a reasonable compass, and fairly
stated, the main ultimate propositions of fact, on which this Court
can determine the principles of law, which must control the
But in the case of United States v. Johnson,
different. We have first a detailed history of Johnson's
transactions in settling on certain land, which is the foundation
of his claim, with no attempt to deduct from this recital any
ultimate fact to which a proposition of law can be applied. This is
followed by from fifteen to twenty affidavits and letters, given in
full, from various officers in the department of the public lands
and other persons. What facts these letters and affidavits are
intended to establish we have not stopped to inquire, because it
was the object of the rule to impose upon the Court of Claims the
duty of drawing the inferences and conclusions which such documents
are supposed to establish, or to decide that they do not establish
them. The statement in this case is in this respect a reproduction
of the finding which we rejected in the case of Burr v. Des
Moines Navigation Co.,
] to which this Court refers in the rules as
containing a judicial exposition of the principles on which they
No doubt it is often difficult to draw the line between a mere
recital of the evidence produced in the case and a finding of the
facts which that evidence establishes, and where the statement
certified by the Court of Claims is reasonably sufficient, we hope
we shall not be found captious. But in the case we have mentioned,
there is such a wide departure from the principle which lies at the
foundation of the rule
Page 73 U. S. 112
that while we shall retain jurisdiction of the case, the record
will be remanded to the Court of Claims with directions to return a
finding of the facts in accordance with the rule.
These principles also dispose of the motion for certiorari in
the case of Clark v. United States.
The motion there is
designed to require the Court of Claims to make a more extended
statement of the evidence on which they find "that the allegation
of fraud or mistake in the concoction of the written agreement is
not sustained by the evidence in the case."
This is precisely the character of finding which the rule of
this Court was intended to produce. The existence of the fraud or
mistake set up in the pleading is one of the ultimate facts to
which the law of the case must be applied, in rendering a judgment,
and this Court does not purpose to go behind the finding of the
Court of Claims on that subject. To do so would require an
examination of evidence, and a comparison of the weight to be
attached to each separate piece of testimony, and the drawing of
inferences from the whole, which is the peculiar province of a
jury, and which, by our rule, we intended to exclude from the
consideration of this Court, by making such finding by the Court of
Claims conclusive. The motion in that case is, therefore,
Motions overruled in all the cases, but in the second case,
the record remanded with directions to make a new finding of facts
in accordance with the rules of Court on the subject.
18 How. 530; Dos
10 Wheat. 306; The Enterprise,
Curtis C.C. 317.
p. <|73 U.S. 101|>101.
68 U. S. 1