Court of Appeal

“ Part of the Court's concern has been to protect the rights of the party whose jury verdict has been set aside on appeal and who may have valid grounds for a new trial, some or all of which should be passed upon by the district court, rather than the court of appeals, because of the trial judge's firsthand knowledge of witnesses, testimony, and issues because of his 'feel' for the overall case. These are very valid concerns to which the court of appeals should be constantly alert. Where a defendant moves for n.o.v. ”

“ Under that decision petitioners could not appeal to the Court of Appeals from an adverse decision in the District Court. Whether they could appeal from an adverse ruling of the Court of Appeals is a question we have not adjudicated. ”

“ Where the Court of Appeal or the House of Lords dismiss an application by the defendant for leave to appeal to that House, the Court or the House of Lords may, if they think fit, order him to pay to such person as may be named in the order the whole or any part of the costs of the application. ”

“ We therefore request that the supreme court will examine into the question, and will determine whether, in admiralty appeals, the parties have the right to offer upon the trial of the appeal such evidence (whether new evidence or evidence taken in the district court) as they shall see fit, or whether the taking of new evidence is a mere privilege, to be granted or not by the judge of the circuit court of appeals, in his discretion. ”

“ An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal. ”

“ Under the act of 1895, as under the previous acts of congress, where the matter in controversy exceeds $5 in value, an appeal lies to a court of record from any judgment of a justice of the peace, whether rendered upon a verdict or not, and either party may have a trial by a common-law jury in the appellate court; and the trial by jury in that court is, and the trial before a justice of the peace is not, a trial by jury, within the meaning of the seventh amendment to the constitution. ”

“ Assuming the correctness of the petitioners' contention that the judgment of the Appellate Division is a 'final' determination of an independent proceeding to revive the action against the respondents, the dismissal by the Court of Appeals of the appeal sued out without leave, must be taken, nothing else appearing, as a holding by that court that the case was not one in which an appeal lay as a matter of right. ”

“ It is only a court of appeal. Section 2 of the act says that it 'shall be a court of record with appellate jurisdiction, as is hereafter limited and established.' Section 6 provides that it 'shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the district court and the existing circuit courts in all cases,' etc. ”

“ Invoking this rule, innumerable court of appeals decisions hold that when one of the judges on a three-judge panel dies, retires, or resigns after an appeal is argued or is submitted for decision without argument, the other two judges on the panel may issue a decision if they agree. ”

“ Considerations of importance to our answer here are that the trial court, in striking the pleas in abatement, acted within its jurisdiction as a district court; that no action or omission on its part has thwarted or tends to thwart appellate review of the ruling; and that while a function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute. ”

“ The enactment, alike by its language and by its purpose, is not restricted to the case of a judge's sitting on a direct appeal from his own decree upon a whole cause, or upon a single question. A judge who has sat at the hearing below of a whole cause at any stage thereof is undoubtedly disqualified to sit in the circuit court of appeals at the hearing of the whole cause at the same or at any later stage. ”

“ In all proceedings in the territorial courts in the nature of suits in equity, therefore, as well as in those proceedings in the nature of actions at common law, in which no trial by jury is had, either because a jury has been duly waived or because the issues tried are issues of law only, the appellate jurisdiction of this court must be invoked by appeal, and not by writ of error. ”

“ All that is essential is that there be a case pending in the circuit court of appeals, and of those classes of cases in which the decision of that court is declared a finality, and this court may, by virtue of this clause, reach out its writ of certiorari, and transfer the case here for review and determination. Obviously, a power so broad and comprehensive, if carelessly exercised, might defeat the very thought and purpose of the act creating the courts of appeal. ”

“ The registrar shall report to the criminal division of the Court of Appeal, or a judge of the Court of Appeal or of the Queen’s Bench Division of the High Court, any case in which it appears to him that, although no application has been made for the purpose, a solicitor and counsel or counsel only ought to be assigned to an appellant under Part I of this Act. ”

“ Where the appeal statutes establish the conditions of appellate review an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases. ”

“ The power of the appellate court over the cause, of which it has acquired jurisdiction by the appeal from the interlocutory decree, is not affected by the authority of the court appealed from, recognized in the last clause of the section, and often exercised by other courts of chancery, to take further proceedings in the cause, unless in its discretion it orders them to be stayed pending the appeal. ”

“ When it is without jurisdiction to decide an appeal which should have been prosecuted to another court, it may vacate the judgment and remand the cause in order to enable the court below to enter a new judgment from which a proper appeal may be taken. ”

“ When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. An appeal by the government when authorized by statute may be taken within 30 days after entry of the judgment or order appealed from.'↑ In this case, the record and legal issues plainly indicate the good faith of the Government in petitioning for rehearing. ”

“ Thus there may be not only a motion to dismiss the appeal but 'for directions to the trial court' and 'to vacate or modify any order made by the trial court or by any judge in relation to the prosecution of the appeal.' As the supervision and control of the proceedings on the appeal expressly embraces the proceedings 'relating to the preparation of the record on appeal,' it cannot be said that an order made by the trial judge fixing the time for the settlement and filing of a bill of exceptions is excluded. ”

“ An appellant is given the right to be present on the hearing of his appeal, if he desires it, except where the appeal is on some ground involving a question of law alone, but rules of court may provide for his presence in such a case, or the court may give him leave. The act requires shorthand notes to be taken of the proceedings at the trial of any person, who, if convicted, would have a right to appeal under the act. Nothing in the act affects the prerogative of mercy, and the home secretary may, if he thinks fit, at any time refer a case to the court of criminal appeal. ”

“ But the appeal which was allowed by that court on the 11th of May, operated as a stay of all proceedings upon or under the judgment of dismissal of the libels made on that same day, and but a few minutes before. The appeal was well allowed, the bonds are in compliance with the order of the court so far as it appears, were accepted by the clerk, and were not objected to by the parties. ”

“ If, in any case of appeal, writ of error or supersedeas, which is now or may hereafter be pending, there be at any time in an appellate court suggested or relied on, in abatement, the death of the party, or any other fact which, if it had occurred after the verdict in an action, would not have prevented judgment being entered as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if the said fact had not occurred. ”

“ Whether 'appeal' includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. ”

“ The more administrable and workable rule, rather, is the one compelled by our precedent: When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal. ”

“ These considerations seem to require the construction that the right of appeal attaches equally to all judgments of the Circuit Court, unless there be something in the clause defining the appellate jurisdiction which demands the restricted interpretation. ”

“ The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. On writ of certiorari the judgment is vacated and, in accordance with the suggestion of the Solicitor General, the case is remanded to the United States Court of Appeals for the Eighth Circuit with directions to allow the appeal in forma pauperis. ”

“ Although, in a doubtful case, we shall not disturb the ruling of a circuit court granting or vacating an appeal, yet, when we are fully satisfied that the amount in controversy is not sufficient to give us jurisdiction, we ought not to attempt an inquiry into the merits of the case which is sought to be appealed. ”