The findings of the Court of Claims in an action at law
determine all matters of fact, like the verdict of a jury, and when
the finding does not disclose the testimony, but only describes its
character, and, without questioning its competency, simply declares
its insufficiency, this Court is not at liberty to refer to the
opinion for the purpose of eking out, controlling, or modifying the
scope of the findings.
Page 164 U. S. 381
On April 16, 1891, appellant, under authority of the Act of
March 3, 1891 (26 Stat. 851), filed his petition in the Court of
Claims to recover the sum of $12,375 for certain property, to-wit,
two geldings, of the value of $500 each, and 91 head of horses, of
the value of $125 each, alleged to have been taken or destroyed by
the Cheyenne and Arapahoe Indians on November 17, 1867. A traverse
having been filed, the case was submitted to the court upon the
evidence. Certain findings of fact were made, the second of which
is as follows:
"The depredation was committed on the 17th November, 1867, near
the Town of Fort Collins, in Larimer County, Colorado, by the
defendant Indians. The claimant never presented this claim to the
Department of the Interior, nor to Congress, nor to any officer or
agent of the government, until his petition in this case was filed
in this Court on the 16th April, 1891. It is supported only by the
testimony of the claimant himself and one witness. Since the
claimant testified, he has filed his own
ex parte
affidavit, stating that the witness above referred to 'is the only
person with whom I am acquainted who is familiar with the theft
complained of,' and that, of thirteen persons who followed the
Indians at the time they took his horses, he does not know the
whereabouts of any except the witness produced, and that he had
used every endeavor to discover the other witnesses, but can secure
no information except that they are dead. The court is not
satisfied, by this evidence, as to the extent of the depredation or
the value of the property."
Upon this finding, judgment was entered in favor of the
defendants, 29 Ct.Cl. 111, from which judgment the claimant
appealed to this Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 164 U. S. 382
The findings of the Court of Claims in an action at law
determine all matters of fact, precisely as the verdict of a jury.
Act of March 3, 1887, c. 359, 24 Stat. 505, §§ 2, 7, 24 Stat. 505;
Act of March 3 1891, 538, 26 Stat. 851, 852, §§ 1, 4;
Desmare
v. United States, 93 U. S. 605,
93 U. S. 610;
McClure v. United States, 116 U.
S. 145.
That court finds that the claimant, upon whom rests the burden
of proof, has not proved the extent of the depredation or the value
of the property, and, there being thus a case of a failure of
proof, judgment properly went against the party upon whom the
burden rested. Counsel for appellant contend that the Court of
Claims has attempted to create a rule of evidence as to the number
of witnesses required in different classes of cases. Beyond the
language of this finding, they call our attention to the opinion,
in which, after a reference to the peculiar circumstances of this
case, the court observes:
"The court has no reason in this particular case, other than the
lapse of time and the inaction of the claimant, to discredit the
witnesses or suspect the claim."
We cannot so interpret the finding or the opinion. We do not
understand that either lays down any arbitrary rule of evidence,
as, for instance, that a claim ten years old must be proved by at
least two witnesses, one twenty years old by three witnesses, and
so on. Such action would be legislative, rather than judicial. The
court simply refers, and properly, to the age of the claim, the
failure to present it for such a length of time, and the meagerness
of the testimony now offered to substantiate it, and then finds
that such testimony, as to two essential facts in the claimant's
case, to-wit, the extent of the depredation and the amount of the
loss, is not sufficient. It is true the court does not find that
the witnesses have sworn falsely, but that is not essential, even
when that is its belief. To say that the testimony is not
satisfactory is more polite and less offensive, and at the same
time equally sufficient. More than that, it is the very language of
the statute, sec. 4: "But the claimant shall not have judgment for
his claim or for any part thereof unless he shall establish the
same by proof satisfactory to the court." We do not mean to
intimate that the court in this
Page 164 U. S. 383
case believed that the witnesses committed perjury. On the
contrary, it may well be that it simply found the testimony so
confused, so lacking in distinctness and precision, as to suggest a
weakening of the memory through lapse of time, and therefore not
the satisfactory proof required of these essential facts.
We are not at liberty to refer to the opinion for the purpose of
eking out, controlling, or modifying the scope of the findings.
British Queen Mining Co. v. Baker Silver Mining Co.,
139 U. S. 222;
Lehnen v. Dickson, 148 U. S. 71;
Saltonstall v. Birtwell, 150 U. S. 417.
Neither is this a case like
United States v. Clark,
90 U. S. 37, in
which, in one finding, was stated the testimony and in another the
conclusion as to the ultimate fact, in which case the court held
that it might consider the sufficiency of such testimony to
establish that principal fact, for here the finding does not
disclose the testimony, but only describes its character, and,
without questioning its competency, simply declares its
insufficiency.
The judgment is
Affirmed.
