Appellant

“ We hold only that where an appeal possesses sufficient merit to warrant a certificate, the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted the appellant must be informed, by rule or otherwise, that his opportunity will or may be limited. [2] Within this general framework, the promulgation of specific procedures is a matter for the courts of appeals. ”

“ 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. ”

“ 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. ”

“ And the appellant shall answer, 'I am such a man, A. de K., the appellant, the which is comen to this journey, &c., for to do, &c.' And then the Constable shall open the visor of his bassinet, so that he may plainly see his visage, and if it be the same man that is the appellant, then shall he make open the gates of the lists, and shall make him enter with the same arms, points, victuals and other lawful necessaries upon him, and also his counsel with him, and then he shall lead him afore the King, and then to his tent, where he shall abide till the defendant be comen. ”

“ While an appeal in a proper case is matter of right, the question whether the case is a proper one under the law regulating appeals is not left to the appellant, but is to be examined and primarily determined by the court or judge to which the application is to be made. ”

“ As we stressed in the R. F. C. case, supra:
'If that were true, the existence of the right to appeal would be subject to contingencies which no degree of diligence by an appellant could control. Ambiguities in statutory language should not be resolved so as to imperil a substantial right which has been granted.' 311 U.S., at 582, 61 S.Ct., at 333. ”

“ The motion on the part of the appellant to dismiss the appeal, on the ground that no citation was issued according to law, cannot be sustained. The appellee is in court represented by counsel, and makes no objection to the want of citation. By this appearance the citation is waived so far as the appellee is concerned, and the appellant cannot be heard to object the want of citation occasioned by her own negligence, and cured by voluntary appearance. ”

“ If the single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal. ”

“ After the counsel had argued the case upon the propositions of the law raised by the exceptions, counsel for the appellant, in support of its motions and exceptions, offered to read to the court the said testimony, but the court declined to hear the same or consider it at the time in full, counsel saying that it would be his purpose to consider the same if the court found, after consideration, the propositions of the law were against the appellant. ”

“ The statutes of the territory further enact that, on an appeal from the judgment of a district court, execution shall be stayed upon the appellant's giving bond, with sureties, such as was given in this case, 'conditioned that the appellant shall prosecute his appeal with due diligence to a decision in the supreme court, and that if the judgment or decision appealed from be affirmed, or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the costs and damages that may be adjudged against him upon his appeal.' Prince, Laws, c. ”

“ The registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the Appeal Court in proper form all documents, exhibits and other things relating to the proceedings in the court-martial by which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application. ”

“ If this court were to re-examine the merits of the case, the appellant would have the full benefit of an appeal which he could not have taken at all, had that court acted rightly in a matter wholly independent of those merits. ”

“ 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. ”

“ In form the proceedings under appeal simply involve an application for particulars by the appellant of the grounds upon which the first respondent had reasonable cause to believe the appellant to be a person of hostile associations and to believe that by reason thereof it was necessary to exercise control over him. ”

“ If he does so in his brief-or in a petition for rehearing if the court of appeals has directed entry of judgment for appellant-the court of appeals may make final disposition of the issues presented, except those which in its informed discretion should be reserved for the trial court. If appellee presents no new trial issues in his brief or in a petition for rehearing, the court of appeals may, in any event, order a new trial on its own motion or refer the question to the district court, based on factors encountered in its own review of the case. ”

“ Power to substitute conviction of alternative offence. 3.— (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. ”

“ No appeal shall be allowed unless such an assignment of errors shall accompany the petition.' Rule 13 (9) : 'When the record is filed, or within fifteen days thereafter, the appellant shall file with the clerk a definite statement of the points on which he intends to rely and a designation of the parts of the record which he thinks necessary for the consideration thereof or a designation of those parts considered unnecessary, whichever is more convenient, with proof of service of the same on the adverse party. ”

“ The affidavit of appellant in support of appellee's motion to dismiss discloses an obviously collusive attempt by appellant and appellee to defeat the ends of justice by dismissing the appeal without the consent of any officer representing either the state or the present sheriff, who are the real parties in interest as appellants. ”

“ The Code of Civil Procedure of Montana provides (section 432) for a statement of the case to be used on appeal, which shall state specifically the particular errors or grounds upon which the appellant intends to rely, and which seems to take the place of an ordinary bill of exceptions. ”

“ The appeal shall be heard on the pleadings and evidence in the district court unless the appellate court on motion otherwise order.'
'Rule 7. Upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations or pray different relief, or interpose a new defense or take new proofs. Application for such leave must be made within fifteen days after the filing of the apostles, and upon at least four days' notice to the adverse party. ”

“ Then again, the petition of appeal to this court, which is verified by the affidavit of the appellant, distinctly avers that the matter in dispute is a large body of land worth more than $5,000 in value. ”

“ I can ask whether or not the law was complied with?↑ Code of Alabama (1958 Recomp.) , Tit. 15, § 382 (10) : 'Hearing and determination in appellate court.-In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto. ”

“ And it is the practice of this court in proper cases, when it is claimed that the value in controversy gives jurisdiction, to allow an opportunity to make proof of the fact. And in admiralty cases, where the pleadings may be amended, and new evidence taken in the appellate court, a liberal practice in relation to appeals is specially warranted.
An order will be made, therefore, allowing the appellants to make proof of jurisdictional value, by affidavits, and to file such proof with the clerk of the court within twenty days; in default of which, the cause will stand dismissed. ”

“ The appellants have the right to the execution of the order given by the district judge to the commissioner and clerk of the court, to ascertain the charges to be made against the respective parties to the suit, and to state an account between them ”

“ Powers under Part II which are exercisable by single judge. 36.— (1) The following powers of the Appeal Court under this Part of this Act, that is to say the power—
(a) to give a direction under section 8 (3) that a person be treated as not having lost his right of appeal; (b) to give leave to appeal; (c) to extend the period within which an application for leave to appeal must be lodged; (d) to make orders under section 20 (2) and discharge or revoke such orders; (e) to allow an appellant to be present at any proceedings ”

“ Pursuant to this Court's Rule 15 (3) , both appeals have been treated as a single case. When appellees filed a motion to affirm, appellants countered with a motion to advance. On October 21, 1963, we noted probable jurisdiction and granted appellants' motion to advance. ”

“ In this Court counsel for the appellants has given similar assurances with respect to the three statutes presently before us, assurances which we understand embrace also the intention of these appellants never to proceed against appellees under any of these enactments with respect to activities engaged in during the full pendency of this litigation. ”

“ But the appellate power of this court is broader than its original, and generally-that is, in most cases-it may be said that the issue of a writ of habeas corpus by us, when it is directed to one of our inferior courts, is an exercise of our appellate jurisdiction. Without going at large into a discussion of its extent, it is sufficient for the present to notice the fact that the exercise of the appellate power is not limited by the Constitution to any particular form or mode. It is not alone by appeal or by writ of error that it may be invoked. ”

“ 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. ”

“ At common law no writ of error could be brought except on a final judgment. Bac. Abr. 'Error,' A. 2. 'If the writ of error be returnable before judgment is given, it may be quashed on motion.' 2 Tidd, Pr. 1162. In respect to appeals there is a difference in the practice of the English chancery courts, in which appeals may be taken from an interlocutory order of the chancellor to the house of lords, and the practice of the United States chancery courts, where the right of appeal is by statute restricted to final decrees, so that a case cannot be brought to this court in fragments. ”

“ 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. ”

“ That case called for the most careful consideration of the court. 'Before we proceed to consider the matter presented by these petitions, we think it proper to state our settled opinion of the course which is prescribed by the law for this court to take, after its final action upon a case, brought within its appellate jurisdiction, as well as that which the court, whose final decree or judgment has been thus verified, ought to take. Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate court. ”

“ The most usual modes of exercising appellate jurisdiction, at least those, which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. ”

“ An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law. [275] The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.
§ 1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." ”