1. The Court of Claims, by granting a new trial after rendering
judgment, and while an appeal therefrom is pending here, vacates
the judgment, and resumes control of the case and the parties.
2. In such a case, a writ of certiorari will not be granted to
compel that court to send here the proceedings subsequent to the
appeal, but the appeal will be dismissed.
3. After judgment shall have been finally rendered by the Court
of Claims, the proceedings in which the new trial was obtained may
be brought here by appeal for review.
Page 94 U. S. 259
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
During the pendency of this suit in this Court the Court of
Claims, assuming to act under the authority of sec. 1088,
Rev.Stat., has granted a new trial, and the United States now ask
to dismiss their appeal. This we have often decided they have the
right to do. Latham's & Deming's
9 Wall. 145. In United
States v. Ayres,
9 Wall. 610, the motion to dismiss
was made by the appellee and resisted by the United States; but it
was held "that the order granting the new trial has the effect of
vacating the former judgment, and to render it null and void," and
the appeal was consequently dismissed. The same principle was
recognized in United States v.
12 Wall. 175, Ex Parte
13 Wall. 664, and Ex Parte
16 Wall. 699.
The appellee asks, however, that the cause may be retained and
that the proceedings under which the new trial was granted may be
brought here by writ of certiorari for reexamination. Unless this
can be done, he admits that the United States should be permitted
to dismiss their appeal.
We have only such appellate jurisdiction as has been conferred
by Congress, and in the exercise of such as has been conferred we
can proceed only in the manner which the law prescribes.
5 How. 119; Durosseau v. United
6 Cranch 314; United
States v. Curry,
6 How. 113; Ex
1 Wall. 251.
From the judgments of the Court of Claims appeals are allowed to
this Court, sec. 707, Rev.Stat., but no provision has been made for
writs of error. Consequently we cannot proceed by writ of error to
review the decisions of that court.
At common law, the writ of certiorari is used for two
1. As an appellate proceeding for the re-examination of some
action of an inferior tribunal, and
2. As auxiliary process
Page 94 U. S. 260
to enable a court to obtain further information in respect to
some matter already before it for adjudication. It is for the last
purpose only that the writ is employed in this Court.
In the present case the writ is asked, not to bring here any
part of the record of the Court of Claims as it existed when the
appeal was taken, but to obtain a new record of a new proceeding
which has been had since, and by which the judgment appealed from
has been vacated and a new trial granted in the court below. The
object is to inform us not of what was done before the appeal, but
of what has been done since. Our action under the appeal, however,
is confined to what was done before, and, if we act at all upon
what has been done since, it must be in consequence of some new
jurisdiction to be acquired. From what has already been said, it is
clear that, for such a purpose, we have no power to issue the
The Court of Claims, by granting a new trial, has resumed
control of the cause and the parties. This it had the right to do.
Such a power may be somewhat anomalous, but it is expressly given,
and every person, when he submits himself to the jurisdiction of
that court for the prosecution of his claim, subjects himself to
its operation. The proceedings under which the new trial was
obtained are now a part of the record below, and, after judgment is
finally rendered, may be brought here by appeal for review.
Motion of the United States to dismiss the appeal granted.
Motion for certiorari denied.