When a judgment of the Court of Claims is reversed and the case is remanded for new trial, the findings of fact on the first trial form no part of the record on appeal from the judgment in the second trial, unless embodied by that court in the second findings. When a claimant in the Court of Claims amends his petition by filing a new one in the place of it, and the case is heard on the amended petition only, and on appeal that court sends up only the amended petition, this court will not issue a writ of certiorari to bring up the original petition.
This was a motion for a writ of certiorari to the Court of Claims. The motion set forth the following facts:
This cause was originally commenced in the Court of Claims by three petitions. In one, numbered 12,515, judgment was given against the company. On appeal this court reversed that judgment. 104 U.S. 662. The three cases were then consolidated in the Court of Claims and an amended petition filed as a substitute for the previous petitions. The original petition in 12,515 set forth as exhibit B a certain letter to the Postmaster-General; and the findings of fact found that letter by referring to the petition. The letter was not attached as an exhibit to, or contained in the amended petition, and was not found as a fact by the Court of Claims. This motion set forth the importance of the letter to the issues in this case, and prayed as follows: "That the said findings of fact in No. 12,515, and, particularly, the said letter of September 1, 1876, be ordered to be made and considered a part of the record on this appeal; and to that end, if necessary, prays, under Rule 14 of this court, that a writ of certiorari issue to the Court of Claims requiring it to transmit to this court the record and the said findings of fact in No. 12,515, and the said letter of September 1, 1876, to which end it prays, under the 30th rule of this court, that the appellant's motion, heretofore filed at this term for a further finding of facts by the Court of Claims, and the order of this court entered thereon, may be reheard, if such rehearing shall be necessary, in order to get said letter of September 1, 1876, before this court as part of the record on this appeal."
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This motion is denied. The findings of fact on the first trial in the Court of Claims have not under our rules any place in this record. Those findings were set aside when the judgment thereon was reversed, and the cause remanded for a new trial. On this appeal we consider only the findings at the second trial.
The original petition filed in the Court of Claims contained by reference the letter of September 1, 1876. In the amended petition, on which the last trial was had, this letter was omitted. It is not, therefore, any part of the record on this appeal. We decided on the former motion to send the case back for further findings, that it could not now be brought here as part of the evidence, and that it was not the proper subject of a special finding. We see no reason to reconsider that decision.
Motion denied.