Chapter 1
Introduction
Appellate procedure consists of the rules and practices by which appellate courts review trial court judgments. Appellate review performs several functions, including: the correction of errors committed by the trial court, development of the law, achieving a uniform approach across courts, and the pursuit of justice, more generally.
Appellate procedure focuses on several main themes: what judgments are appealable, how appeals are brought before the court, what will be required for a reversal of the lower court (e.g., a showing of "abuse of discretion," "clear error," etc.), and what procedures parties must follow.
In this project, the US appellate procedure shall be explained first, followed by the appellant procedure in India. Only Civil Appellate procedure shall be looked at.
Chapter 2
Hierarchy of Courts in the United States of America.
Before we can know about the appellate procedure in US courts, the Structure of courts must be known.
The US has a Federal Constitution, which is the most federal constitution in the world. Hence, they have a dual system of court's with every state having it's own supreme court, and there is a Federal Supreme Court to handle Federal issues. It is impossible to examine the appellate procedure for 50 states, so the Federal appellate procedure has been examined.
It is something of a myth to speak about a single U.S. court system because the U.S. judicial system is in reality composed of multiple autonomous courts. There is the federal court system, an integrated system divided into numerous geographic units and various levels of hierarchy; in addition, each state has its own court system with a system of local courts that operate within the state. Under this dual federal/state court structure, the U.S. Supreme Court is the final arbiter of federal law, while the highest court of each state (usually called supreme courts) has the ultimate authority to interpret matters of the law of its state. When federal constitutional or statutory matters are involved, the federal courts have the power to decide whether the state law violates federal law .
The functioning of these systems is complicated by the fact that there are multiple sources of law, and courts of one system are often called upon to interpret and apply the laws of another jurisdiction. In addition, more than one court may have sovereignty to hear a particular case.
The federal judiciary and the individual state judicial systems are each constructed like a pyramid. Entry-level courts at both the state and federal levels are trial courts, in which witnesses are called, other evidence is presented and the fact-finder (a jury or sometimes a judge) is called upon to decide issues of fact based on the law.
At the top of each pyramid structure is the court of last resort (at the federal level, the U.S. Supreme Court; at the state level, the state supreme court) which has the authority to interpret the law of that jurisdiction. In most states and in the federal system there is also a mid-level court of appeals.
The vast majority of courts at both the state and federal level are "courts of general jurisdiction," meaning that they have authority to decide cases of many different types. There are no special constitutional courts in the U.S. -- any court has the power to declare a law or action of a government executive to be unconstitutional, subject to review by a higher-level court.
The Federal Courts
Traditional federal courts are known as Article III courts because they have the power of judicial review and certain protections under Article III of the U.S. Constitution. These courts are organized in a three-tiered hierarchical structure and along geographic divisions. At the lowest level are the U.S. District Courts, which are the trial courts. Appeals from the U.S. District Courts are taken to the U.S. Courts of Appeals, often referred to as U.S. Circuit Courts. From there, cases may be brought to the U.S. Supreme Court. Much of the Supreme Court's review power is discretionary, and only a small percentage of cases brought to it are actually ruled on by the Court.
The federal courts are organized geographically by state, but they are not state courts. Every state has at least one federal district in it. Many states have more than one. Each district has a U.S. District Court, a trial court. Each federal district court falls within a federal circuit. There are thirteen federal circuits. Twelve of these circuits are numbered (i.e., 1st, 2nd, 3rd, etc.) and two of them are named (District of Columbia circuit and Federal circuit). Each circuit is home to an intermediate appellate court known as the U.S. Court of Appeals. The decisions of each circuit court are mandatory authority for the district courts within that circuit. In other words, the decisions of the U.S. Court of Appeals for the 8th Circuit are mandatory authority for the U.S. District Court for the District of Nebraska, with respect to federal law.
The US Hierarchy of Courts.
Appeals from the federal circuit courts are to the U.S. Supreme Court. This is the court of last resort in the federal system. it has the final say on all matters of federal constitutional law, and the final say regarding the interpretation of federal statutes and regulations. (Of course, Congress can simply change a statute if it doesn't like the way the U.S. Supreme Court is interpreting it. It cannot, however, change the Constitutional simply by enacting a new statute. It must be amended according to the requirements set forth in the Constitution itself.)
Cases are reach the U.S. Supreme Court either as direct appeals (relatively rare) or by petitioning the Court to grant a writ of certiorari. Essentially, the petitioner is asking the Court to hear its case. This is called discretionary review. The Court does not have to accept the case if it doesn't want to, and it usually doesn't want to. The Court receives over 6,000 petitions for a writ of certiorari every year and ultimately hears argument in only about a hundred. Obviously, the U.S. Supreme Court's decisions are mandatory authority on all courts (state or federal) on matters of federal law. A map of the thirteen federal circuits is given below.
Mandatory vs. Persuasive Authority:Mandatory authority for a U.S. District Court with respect to federal law comes from the U.S. Supreme Court and the U.S. Court of Appeals for the circuit the District Court is in. So, for the United States District Court for the District of Nebraska, the decisions of the United States Court of Appeals for the 8th Circuit are the ones that count. Decisions from other circuits are "merely persuasive."
Yes, that means the law can be different in different circuits. This is called a split in the circuits and makes it more likely that the U.S. Supreme Court will grant certiorari.
When a federal District Court is applying state law, the appellate courts of the state whose law it is applying are mandatory authority with respect to the state law.
The U.S. District Courts are entry-level courts of general jurisdiction, meaning they hear cases involving various criminal and civil matters. There are 94 U.S. federal judicial districts, with at least one district court in each state. In the largest and most heavily populated states, there are several districts, but districts do not cross state lines. The number of judges depends on the size and population -- and hence workload -- of each district court. Although each district court has numerous judges, a single judge presides over each case.
The U.S. Courts of Appeals, is the intermediate-level federal court. The courts of appeals are considered the workhorse of the federal court system because the brunt of cases are resolved there. Appeals are taken from U.S. district courts to the U.S. courts of appeals if a losing party feels that the judge in the district court made an error of law. Appeals may not be taken to correct perceived errors of fact, unless there is a clear error of law. Thus, for example, a losing party may argue that the judge erred by admitting a certain document into evidence; but the losing party may not argue that the judge or jury reached a bad conclusion based only on that document.
The U.S. Courts of Appeals is divided geographically into 12 circuits.The U.S. Court of Appeals for the Federal Circuit and the 12 regional courts of appeals are often referred to as circuit courts. That is because early in the nation's history, the judges of the first courts of appeals visited each of the courts in one region in a particular sequence, traveling by horseback and riding "circuit." -- 11 numbered circuits, each covering at least three states, and the U.S. Court of Appeals for the District of Columbia (D.C. Circuit), which also hears cases involving the federal government. Each circuit hears appeals from the district courts within its territory.
The number of judges in each circuit varies widely and is determined by the population and size of each circuit. A panel of three judges -- chosen at random -- sits on each case, and different combinations of judges sit on different cases.
The U.S. Courts of Appeals may decide cases on the basis of written briefs submitted by the litigants or may order oral argument. A decision is based on written opinion drafted by one of the judges and circulated to the other two panel members. The opinion of the court also must be signed by at least two panel members. Any of the judges on the panel may write a concurring opinion in which the judge agrees with the result reached in the majority opinion but for different or additional reasons. A judge that disagrees with the opinion of the court may instead write a dissenting opinion explaining why he or she has reached a different conclusion. Although dissenting and concurring opinions do not have the force of law, they may be highly influential in subsequent court decisions.
After the three-judge panel has rendered a decision, litigants have several options: they may seek reconsideration of the decision by the same three-judge panel; they may seek rehearing of the panel's decision by all of the judges of that circuit sitting together; or they may seek review by the U.S. Supreme Court by filing a motion for a writ of certiorari, (when the lower courts have ruled on the case and disagreed on their opinions). Each of these measures of relief is discretionary, however, and is rarely granted.
The U.S. Supreme Court is at the apex of the federal court system and consists of nine justices who hear and decide cases. As in the U.S. Courts of Appeals, justices may join the majority opinion or may write or join a concurring or dissenting one.
The Supreme Court's general jurisdiction is largely discretionary through the process of certiorari. Under the so-called rule of four, if four of the nine justices favor hearing a case then certiorari will be granted. The Court often accepts cases in which there is a split of authority among different U.S. circuit courts or in which important constitutional or other legal principles are implicated. The denial of certiorari does not imply agreement with the lower courts' decisions, but simply indicates that the requisite number of justices for whatever reason did not want to hear the case.
Besides a writ of certiorari, the Supreme Court can review cases on appeal from federal courts or state supreme courts whose decisions are based on an issue of federal law (for example, when a federal appeals court invalidates a state statute; or when a state court strikes down a federal statute). The Court also may decide specific legal issues referred to it by lower federal courts.
The Supreme Court also has original jurisdiction over certain limited cases: controversies between two states; controversies between the United States and an individual state; actions by a state against a citizen of another state or an alien; and cases brought by or against a foreign ambassador or consul.
Special Courts
In general, the federal court system does not create special courts for specific matters. Two notable exceptions to this rule are the U.S. Court of Federal Claims, which handles monetary suits brought against the United States, and the U.S. Court of International Trade, which is authorized to hear and decide civil actions against the United States, federal agencies or their employees, arising out of any law pertaining to international trade.
There is also one specialized federal appeals court -- the U.S. Court of Appeals for the Federal Circuit. This court has jurisdiction over appeals from all district courts in cases arising under patent laws as well as over appeals from the U.S. Court of Federal Claims and the Court of International Trade.
The federal system also embraces a number of courts known as legislative or Article I courts, referring to Article I of the U.S. Constitution. Article I courts act pursuant to Congress' legislative powers and have the authority to decide factual questions relating to specific matters. Examples of Article I courts include the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Veterans Appeals, the U.S. Tax Court and the U.S. Bankruptcy Courts. Appeals from these courts may be brought to the U.S. Courts of Appeals.
Administrative Courts
Federal agencies play an enormous role in developing and carrying out U.S. laws on a wide array of topics, from the regulation of natural resources to the health and safety of workers. Often, this means that an agency will sit as a fact-finding tribunal in applying federal regulations. When disagreements occur, the parties present their evidence to an administrative law judge (ALJ), who acts as the fact-finder. Either party may appeal the judge's decision, usually to a board or commission established by the federal agency that issued the regulations. Because the ALJ has already served the fact-finding function that would normally be undertaken by a federal district court, appeals from rulings of major agencies (e.g., National Labor Relations Board or the Federal Trade Commission) are brought directly before the U.S. Courts of Appeals. Although such appeals may be brought in any circuit, as a practical matter the D.C. Circuit hears most appeals from federal agencies.
The State Courts
Each state, as well as the District of Columbia and the Commonwealth of Puerto Rico, has its own independent judicial system, that operates independently. The highest court in each state is the ultimate authority on what the law is with regard to state law from the state's point of view.
The structure of state courts, like that of the federal courts, is in the form of a pyramid. Most states have a three-tiered judicial system composed of a trial-court level (sometimes called superior courts, district courts or circuit courts), an appellate court (often called the court of appeals) and a court of last resort (usually called the supreme court). Some states simply have one level of appeal.
As in the federal court system, trials are presided over by a single judge (often sitting with a jury); entry-level appellate cases are heard by a three-judge panel; and in state supreme courts, cases are heard by all members of the court, which usually number seven or nine justices.
Also like the federal system, state court cases begin at the trial-court level. These courts are often divided into two levels: courts of general jurisdiction and specialized courts.
Cases decided by a trial court are subject to appeal to and review by an appellate court. In some states, as noted above, there is only one level of appeal from the lowest state court. In states in which there are two courts of appeal, rules differ as to whether a case will automatically go to the appeals court or the state supreme court. In some states, appeals from the trial court are brought to the mid-level state appellate court, with subsequent discretionary review by the state supreme court. In other states, litigants bring appeals from the trial-level court directly to the supreme court, which decides whether to hear the case itself or to have the appeal resolved by the intermediate appeals court. Under either of these scenarios, the state supreme court generally reviews cases that involve significant matters of state law or policy.
Specialized state courts are trial-level courts of limited jurisdiction that only hear cases that deal with specific kinds of legal issues or disputes. Although these courts vary from state to state, many states have specialized courts for traffic matters, family law matters, probate for the administration of decedents' estates, and small claims (for cases involving less than a specific sum of money). Rulings of these specialized courts are subject to appeal and review by state courts of general jurisdiction.
Local Courts
Each of the 50 states is divided into localities or municipalities called cities, counties, towns or villages. Local governments, like their state counterparts, have their own court systems, which are presided over by local magistrates, who are public civil officers possessing judicial power delegated under the local governing laws. This may include the power to rule on laws relating to zoning authority, the collection and expenditure of local taxes, or the establishment and operation of public schools.
Chapter 3
Federal Appellate Procedure in the United States of America
Appealable issues are commonly limited to "final judgments." The federal "final judgment rule" at 28 U.S.C. § 1291 governs this. There are, however, exceptions to the "final judgment rule." They include: instances of plain or fundamental error by the trial court, questions of subject-matter jurisdiction of the trial court, or constitutional questions. This is covered by the Federal statute on appealable interlocutory (non-final) decisions at 28 U.S.C. § 1292.
Argument in appellate court centers around written briefs prepared by the parties. These state the questions on appeal and enumerate the legal authorities and arguments in support of each party's position.
Only a few jurisdictions allow for oral argument as a matter of course. Where allowed, oral argument is intended to clarify legal issues presented in the briefs. Ordinarily, oral arguments are subjected to a time limit extended only upon the discretion of the court.
Federal appellate courts are governed by the Federal Rules of Appellate Procedure. State appellate courts are governed by their own state rules of appellate procedure.
The Federal Rules of Appllate Procedure are very exhaustive, covering all aspect of the Appeal.
Rule 18 of the Federal Supreme Court Rules lays down the exact procedure to be followed in cases of appeals from a District Court. This is reproduced in full below.
Rule 18. Appeal from a United States District Court
• 1. When a direct appeal from a decision of a United States district court is authorized by law, the appeal is commenced by filing a notice of appeal with the clerk of the district court within the time provided by law after entry of the judgment sought to be reviewed. The time to file may not be extended. The notice of appeal shall specify the parties taking the appeal, designate the judgment, or part thereof, appealed from and the date of its entry, and specify the statute or statutes under which the appeal is taken. A copy of the notice of appeal shall be served on all parties to the proceeding as required by Rule 29, and proof of service shall be filed in the district court together with the notice of appeal.
• 2. All parties to the proceeding in the district court are deemed parties entitled to file documents in this Court, but a party having no interest in the outcome of the appeal may so notify the Clerk of this Court and shall serve a copy of the notice on all other parties. Parties interested jointly, severally, or otherwise in the judgment may appeal separately, or any two or more may join in an appeal. When two or more judgments involving identical or closely related questions are sought to be reviewed on appeal from the same court, a notice of appeal for each judgment shall be filed with the clerk of the district court, but a single jurisdictional statement covering all the judgments suffices. Parties who file no document will not qualify for any relief from this Court.
• 3. No more than 60 days after filing the notice of appeal in the district court, the appellant shall file 40 copies of a jurisdictional statement and shall pay the Rule 38 docket fee, except that an appellant proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2, together with a motion for leave to proceed in forma pauperis, a copy of which shall precede and be attached to each copy of the jurisdictional statement. The jurisdictional statement shall follow, insofar as applicable, the form for a petition for a writ of certiorari prescribed by Rule 14, and shall be served as required by Rule 29. The appendix shall include a copy of the notice of appeal showing the date it was filed in the district court. For good cause, a Justice may extend the time to file a jurisdictional statement for a period not exceeding 60 days. An application to extend the time to file a jurisdictional statement shall set out the basis for jurisdiction in this Court; identify the judgment sought to be reviewed; include a copy of the opinion, any order respecting rehearing, and the notice of appeal; and set out specific reasons why an extension of time is justified. For the time and manner of presenting the application, see Rules 21, 22, and 30. An application to extend the time to file a jurisdictional statement is not favored.
• 4. No more than 30 days after a case has been placed on the docket, an appellee seeking to file a conditional cross-appeal (i. e., a cross-appeal that otherwise would be untimely) shall file, with proof of service as required by Rule 29, a jurisdictional statement that complies in all respects (including number of copies filed) with paragraph 3 of this Rule, except that material already reproduced in the appendix to the opening jurisdictional statement need not be reproduced again. A cross-appealing appellee shall pay the Rule 38 docket fee or submit a motion for leave to proceed in forma pauperis. The cover of the cross-appeal shall indicate clearly that it is a conditional cross-appeal. The cross-appeal then will be placed on the docket. It is the cross-appellant's duty to notify all cross-appellees promptly, on a form supplied by the Clerk, of the date of filing, the date the cross-appeal was placed on the docket, and the docket number of the cross-appeal. The notice shall be served as required by Rule 29. A cross-appeal may not be joined with any other pleading, except that any motion for leave to proceed in forma pauperis shall be attached. The time to file a cross-appeal will not be extended.
• 5. After a notice of appeal has been filed in the district court, but before the case is placed on this Court's docket, the parties may dismiss the appeal by stipulation filed in the district court, or the district court may dismiss the appeal on the appellant's motion, with notice to all parties. If a notice of appeal has been filed, but the case has not been placed on this Court's docket within the time prescribed for docketing, the district court may dismiss the appeal on the appellee's motion, with notice to all parties, and may make any just order with respect to costs. If the district court has denied the appellee's motion to dismiss the appeal, the appellee may move this Court to docket and dismiss the appeal by filing an original and 10 copies of a motion presented in conformity with Rules 21 and 33.2. The motion shall be accompanied by proof of service as required by Rule 29, and by a certificate from the clerk of the district court, certifying that a notice of appeal was filed and that the appellee's motion to dismiss was denied. The appellant may not thereafter file a jurisdictional statement without special leave of the Court, and the Court may allow costs against the appellant.
• 6. Within 30 days after the case is placed on this Court's docket, the appellee may file a motion to dismiss, to affirm, or in the alternative to affirm or dismiss. Forty copies of the motion shall be filed, except that an appellee proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2, together with a motion for leave to proceed in forma pauperis, a copy of which shall precede and be attached to each copy of the motion to dismiss, to affirm, or in the alternative to affirm or dismiss. The motion shall follow, insofar as applicable, the form for a brief in opposition prescribed by Rule 15, and shall comply in all respects with Rule 21.
• 7. The Clerk will distribute the jurisdictional statement to the Court for its consideration upon receiving an express waiver of the right to file a motion to dismiss or to affirm or, if no waiver or motion is filed, upon the expiration of the time allowed for filing. If a motion to dismiss or to affirm is timely filed, the Clerk will distribute the jurisdictional statement, motion, and any brief opposing the motion to the Court for its consideration no less than 10 days after the motion is filed.
• 8. Any appellant may file a brief opposing a motion to dismiss or to affirm, but distribution and consideration by the Court under paragraph 7 of this Rule will not be deferred pending its receipt. Forty copies shall be filed, except that an appellant proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The brief shall be served as required by Rule 29.
• 9. If a cross-appeal has been docketed, distribution of both jurisdictional statements will be deferred until the cross-appeal is due for distribution under this Rule.
• 10. Any party may file a supplemental brief at any time while a jurisdictional statement is pending, calling attention to new cases, new legislation, or other intervening matter not available at the time of the party's last filing. A supplemental brief shall be restricted to new matter and shall follow, insofar as applicable, the form for a brief in opposition prescribed by Rule 15. Forty copies shall be filed, except that a party proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The supplemental brief shall be served as required by Rule 29.
• 11. The clerk of the district court shall retain possession of the record until notified by the Clerk of this Court to certify and transmit it. See Rule 12.7.
• 12. After considering the documents distributed under this Rule, the Court may dispose summarily of the appeal on the merits, note probable jurisdiction, or postpone consideration of jurisdiction until a hearing of the case on the merits. If not disposed of summarily, the case stands for briefing and oral argument on the merits. If consideration of jurisdiction is postponed, counsel, at the outset of their briefs and at oral argument, shall address the question of jurisdiction. If the record has not previously been filed in this Court, the Clerk of this Court will request the clerk of the court in possession of the record to certify and transmit it.
• 13. If the Clerk determines that a jurisdictional statement submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. If a corrected jurisdictional statement is received no more than 60 days after the date of the Clerk's letter, its filing will be deemed timely.
A pictorial representation of the stages of Appeal is given on the next page.
The Federal Rules of Appellate procedure state the requirements for Appeals
FEDERAL RULES OF APPELLATE PROCEDURE
TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT
Rule 3. Appeal as of Right—How Taken
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a no¬tice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.
(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.
(4) An appeal by permission under 28 U.S.C. §1292(b) or an ap¬peal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(1)Rule 3
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of ap¬peal, the appeals may be joined or consolidated by the court of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may de¬scribe those parties with such terms as ‘‘all plaintiffs,’’ ‘‘the defendants," "the plaintiffs A, B, et al.,’’ or ‘‘all de¬fendants except X’’;
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.
(3) In a class action, whether or not the class has been cer¬tified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.
(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a no¬tice of appeal by mailing a copy to each party's counsel of record—excluding the appellant's—or, if a party is proceeding pro se, to the party's last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal serv¬ice or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries—and any later docket entries—to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.
(3) The district clerk's failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party's counsel.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk re¬ceives the appellate docket fee on behalf of the court of appeals.
Rule 4. Appeal as of Right—When Taken
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party with¬in 60 days after the judgment or order appealed from is en¬tered.
(C) An appeal from an order granting or denying an ap¬plication for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3) Multiple Appeals. If one party timely files a notice of ap¬peal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever pe¬riod ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Proce¬dure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58; (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59; or (vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered. (B)(i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule meas¬ured from the entry of the order disposing of the last such remaining motion.—
(iii) No additional fee is required to file an amended no¬tice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a no¬tice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time pre¬scribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the motion is filed within 180 days after the judg¬ment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;
(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a)(1) re¬quires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
• the judgment or order is set forth on a separate document, or
• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order on a sepa¬rate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the validity of an appeal from that judgment or order.
Chapter 4
Appellate Procedure in India
The expression "appeal" has not been defined in the Code of Civil Procedure, 1908, but it may be defined as ' 'the judicial examination of the decision by a higher court of the decision of an inferior court". Sir Dinshaw Mulla in the case of Nagendra Nath v. Suresh Chandra, said thus: "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term." It means removal of a cause from an inferior court to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of the lower court set aside. In other words, it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. It is "a right of entering a superior court and invoking its aid and interposition to redress an error of the court below"
There are three basic elements of an appeal.
1. A decision (usually a judgment of a court or the ruling of an administrative authority);
2. A person aggrieved (who is often, though not necessarily, a party to the original proceeding); and
3. A reviewing body ready and willing to entertain an appeal.
A right of appeal is not a natural or inherent right. The right of appeal is a substantive right and not merely a matter of procedure. A single right of appeal is more or less a universal requirement. It is based on the principle that all men are falliable and Judges are human beings who may commit a mistake. Absence of even one right of appeal must be considered to be a glaring lacuna in a legal system governed by the Rule of Law.
Sections 96, 100, 104 and 109 of the Code of Civil Procedure confer the right of appeal on aggrieved persons in cases mentioned therein. Sections 96 to 99 and 107 read with Order 41 deal with first appeals.
An appeal is a continuation of a suit. A decree passed by an appellate court would be construed to be a decree passed by the Court of the first instance. An appeal is virtually a rehearing of the matter. The appellate court possesses the same powers and duties as the original court. Once again the entire proceedings are before the appellate court which can review the evidence as a whole, subject to statutory limitations, if any, and can come to its own conclusion on such evidence.
In Dayawati v. Inderjit , speaking for the Supreme Court, Justice Hidayatullah, stated:
"An appeal has been said to be 'the right of entering a superior Court, and
invoking its aid and interposition to redress the error of the Court below'. The
only difference between a suit and an appeal is that an appeal 'only reviews
and corrects the proceedings in a cause already constituted but does not create
the cause'."
Moreover, where an appeal is provided by law and is filed against a decree or order passed by a lower court, the decision of the appellate court will be the operative decision. It is obvious that when an appeal is made, the appellate authority can do one of the three things, namely:
(i) it may reverse the order under appeal;
(ii) it may modify that order; and
(iii) it may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. [I]t is the appellate decision alone which subsists and is operative and capable of enforcement.
In Garikapati v. Subbiah Choudhry , referring to various leading decisions on the subject, the Supreme Court laid down the following principles relating to a right of appeal:
1. That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
2. The right of appeal is not a mere matter of procedure but is a substantive right.
3. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
4. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists on and from the date the lis commences and, although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
5. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
FIRST APPEAL
A first appeal lies against a decree passed by a court exercising original jurisdiction, a second appeal lies against a decree passed by a first appellate court. Whereas a first appeal can be filed in a superior court which may or may not be a High Court, a second appeal can be filed only in the High Court. A first appeal is maintainable on a question of fact, or on a question of law, or on a mixed question of fact and law. A second appeal can be filed only on a substantial question of law.
SECTION 96 Of the Code of Civil Procedure, 1908
Section 96 reads as under:
1. Save where otherwise expressly provided in the body of this Code, or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.
2. An appeal may lie from an original decree passed ex parte.
3. No appeal shall lie from a decree passed by the court with the consent of parties.
4. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.
Section 96 of the Code recognises the right of appeal from every decree passed by any court exercising original jurisdiction. It does not refer to or enumerate the persons who may file an appeal. But before an appeal can be filed under this section, two conditions must be satisfied:
(i) The subject-matter of the appeal must be a "decree", that is, a conclusive determination of "the rights of the parties with regard to all or any of the matters in controversy in the suit";41 and
(ii) The party appealing must have been adversely affected by such determination.
Therefore, the following persons are allowed to appeal, based on the above principles.
1. A party to the suit who is aggrieved or adversely affected by the decree, or if such party is dead, his legal representatives.
2. A person claiming under a party to the suit or a transferee of the interests of such party, who, so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.
3. A guardian ad litem appointed by the court in a suit by or against a minor.
4. Any other person, with the leave of the court, if he is adversely affected by the decree.
Those barred from appealing
If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will be bound by an agreement if otherwise such agreement is valid. Such an agreement, however, must be clear and unambiguous. Whether a party has or has not waived his right of appeal depends upon the facts and circumstances of each case. Similarly, where a party has accepted the benefits under a decree of the court, he can be estopped from questioning the legality of the decree.
Procedure of Appeal
As stated Sections 96 to 99-A enact the substantive law as regards First Appeals, while Order 41 lays down the procedure relating thereto. The expressions appeal and memorandum of appeal denote two distinct things. An appeal is the judicial examination by a higher court of the decision of an inferior court. The memorandum of appeal contains the grounds on which judicial examination is invited. For purposes of limitation and for purposes of the rules of the court, it is required that a memorandum of appeal shall be filed. In order that an appeal may be said to be validly presented, the following requirements must be complied with:
1. It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from;
2. It must be signed by the appellant or his pleader;
3. It must be presented to the court or to such officer as it appoints in that behalf;
4. The memorandum must be accompanied by a certified copy of the decree;
5. It must be accompanied by a certified copy of the judgment, unless the court dispenses with it; and
6. Where the appeal is against a money decree, the appellant must deposit the decretal amount or furnish the security in respect thereof as per the direction of the court.
The memorandum of appeal must contain the grounds of objections to the decree appealed from, concisely, under distinct heads, without any argument or narrative and should be numbered consecutively. Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of objection not set forth in the memorandum of appeal. The underlying object of this provision is to give notice to the respondent of the case he has to meet at the hearing of the appeal. The appellate court, however, is entitled to decide an appeal even on a ground not set forth in the memorandum of appeal. But when the appellate court suo motu proposes to do so, the party affected must be given an opportunity to contest the case on that ground. A memorandum of appeal should be prepared after carefully considering
i. the pleadings;
ii. the issues;
iii. the findings thereon;
iv. the judgment; and
v. the decree.
Where the memorandum of appeal is not in a proper form, the court may reject it or return it to the appellant for the purpose of being amended.
Rule 4 provides that where a decree proceeds upon a ground common to all the plaintiffs or defendants, any one of the plaintiffs or defendants may appeal from the whole decree, and thereupon the appellate court can reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be. The general rule is that on an appeal by one of the several plaintiffs or defendants, an appellate court can reverse or vary the decree of the trial court only in favour of the party appealing. Rule 4 is an exception to this principle. It confers on the court the power to make an appropriate order needed in the interests of justice by reversing or varying the decree in favour of all the plaintiffs or defendants, as the case may be. In such a case, an appeal by one is virtually treated as an appeal on behalf of all, though they may not be parties to the appeal. Rule 4 is based on two considerations; firstly, to give the appellate court full power to do justice to all parties, whether before it or not; and secondly, to prevent contradictory decisions in the matter in the same suit.
Memorandum of Appeal.
The right of appeal is undoubtedly a substantive right and its deprivation is a serious prejudice. But there is no vested right in procedure. Hence, no one can claim that one's appeal should be heard by a particular court. Change in the forum of appeal, therefore, cannot be said to cause prejudice to a party.
For the purpose of jurisdiction of the court, the appellant has to put valuation in appeal. Such valuation may be the same for jurisdiction as well as for court-fees, for instance, an appeal for recovery of money due. It may differ also, for instance, in suits for partition, pre-emption, redemption of mortgage, etc.
Presentation of Appeal (Rules 9 and 10)
Rule 9 as amended by the Code of Civil Procedure (Amendment) Act, 1999 states that the court from whose decree an appeal lies shall entertain the memorandum of appeal, shall make an endorsement thereon and shall register the appeal in register of appeals.
In view of the above provision of filing of appeals in the court which passed the decree, Rules 13, 15 and 18 requiring notice to the court whose decree is under challenge have been deleted.
It is, however, submitted that the provision relating to filing of appeals is vague, ambiguous, unclear and confusing. It is not clear whether Rule 9 is merely an enabling or permissive provision or is imperative and peremptory. No doubt, it uses the expression "shall". But suppose, the aggrieved appellant intends to file an appeal in an appellate court directly where an appeal lies, is he prevented from instituting such appeal in a court competent to hear the appeal? Can such court refuse to entertain an appeal though it is an appellate forum under the Code? Again, even after entertaining an appeal, what the trial court will do with the memorandum of appeal? How it will forward the said memorandum of appeal and records and proceedings to the appellate court in absence of any provision to that effect. It may be stated that there was a provision for transmission of record by a trial court to an appellate court (Rule 13), which has been deleted. At present, there is no specific or express provision relating to transmission of record by the trial court.
SECOND APPEAL
Sections 100 to 103, 107-108 and Order 42 deal with second appeals. As already stated, a right of appeal is not a natural or inherent right attaching to litigation and it does not exist unless expressly conferred by a statute. Section 100 of the Code allows filing of second appeals in the High Court, if the High Court is satisfied that "the case involves a substantial question of law" but not on any other ground.
Section 100 reads as under:
"(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Section 100 of the Code as amended by the Amendment Act of 1976 declares that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Such appeal lies also against an appellate decree passed ex parte. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal. Where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate such question. The High Court can hear the appeal on the question so formulated. It, however, permits the respondent (opposite party) to argue at the hearing of the appeal that the question formulated by the court as a substantial question of law does not involve such question. But the High Court has power to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. The High Court, however, is required to record reasons for such satisfaction.
The amendment made in Section 100 has drastically changed and considerably curtailed the scope of a second appeal. Under the old section, a second appeal was maintainable on any of the three grounds set out in clauses (a), (b) or (c), which were liberally interpreted by High Courts, resulting in a plethora of conflicting judgments.
The Law Commission rightly observed: "It appears that the wide language of Section 100 and the somewhat liberal interpretation placed judicially on it have practically resulted in giving a goodbye to the basic principle that on questions of fact decisions of courts of first instance would be final subject to one appeal."
After the amendment in Section 100, the following consequences ensued:—
1. The High Court must be satisfied that the case involves a substantial question of law;
2. The memorandum of appeal must precisely state such question;
3. The High Court at the time of admitting the appeal should formulate such question;
4. The appeal shall be heard only on that question;
5. At the hearing of the appeal, the respondent can argue that the case does not involve such question;
6. The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not formulated by it, if it is satisfied that the appeal involves such question. The High Court, however, has to record reasons for doing so.
SUBSTANTIAL QUESTION OF LAW
The Legislature has not defined the term "substantial question of law", though the expression has been used in the Constitution16 as well as in other statutes. The phrase, however, cannot be confined to a straitjacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen.
A High Court can entertain a second appeal provided that it is satisfied that the case 'involves' a substantial question of law. The term "involves" suggests that such a question must arise in the case and it is necessary to decide it . The mere fact that the question is raised by the appellant in the appeal is not enough and the High Court is not justified in entertaining the appeal. The term 'involves' implies a considerable element of necessity.
Though the expression substantial question of law has not been defined in the Code, in Chunilal Mehta v. Century Spg. & Mfg. Co. Ltd. , the Supreme Court observed:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and, if so, whether it is either an open question in the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law."
It can thus be said that when a question is fairly arguable, or where there is room for a different opinion, or where an alternative view is equally possible, or where the point is not finally settled, or not free from doubt, it can be said that the question would be a 'substantial question of law'.
The following questions may be said to be substantial questions of law:
1. A question of law on which there is conflict of judicial opinion;
2. Recording of a finding without any evidence on record;
3. Inference from or legal effect of proved or admitted facts;
4. Disregard or non-consideration of relevant or admissible evidence;
5. Taking into consideration irrelevant or inadmissible evidence;
6. Misconstruction of evidence or documents;
7. Interpretation or construction of material documents;
8. A question of admissibility of evidence;
9. Placing onus of proof on a wrong party;
10. Disposal of appeal before disposing an application for additional evidence under Order 41, Rule 27, etc.
The following questions were held not to be substantial questions of law:
1. Concurrent findings of fact recorded by courts of below;
2. Finding of fact recorded by the first appellate court;
3. Where two views are possible;
4. Where new case is sought to be made out in second appeal;
5. Where new plea is raised which is either based on fact, or on mixed question of fact and law, or on mere quetion of law (and not on substantial question of law);
6. Where the question raised is too general or omnibus in nature;
7. Where inference as to finding of fact has been drawn on the basis of evidence and material on record;
8. Where the question is finally concluded by the Supreme Court, Privy Council or Federal Court;
9. Where a finding of fact has been attacked on the ground that it is erroneous (as against perverse);
10. Where the High Court feels that the reasoning of the first appellate court is not proper, etc.
Appeals to the Supreme Court of India.
Appeals to the Supreme Court are governed by the provisions of Articles 132, 133 and 134-A of the Constitution of India with regard to civil matters. Subject to the provisions of the Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies that
(a) The case involves a substantial question of law of general importance; and
(b) In the opinion of the High Court the said question needs to be decided by the Supreme Court.
Sections 109 and 112 read with Order 45 deal with appeals to the Supreme Court.
An appeal would lie to the Supreme Court under Section 109 of the Code only if the following conditions are fulfilled:
1. a judgment, decree or final order must have been passed by the High Court;
2. a substantial question of law of general importance must have been involved in the case; and
3. in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
An appeal lies to the Supreme Court only against a judgment, decree or final order of the High Court. A judgment, decree or final order against which an appeal can be preferred to the Supreme Court must be one which purports to put an end to the litigation between the parties. No certificate can be granted in respect of an interlocutory order. The test whether the order is final or not will not depend upon whether the controversy is finally over, but whether the controversy raised before the High Court is finally over or not.
An appeal would lie to the Supreme Court if the High Court certifies that the case involves a substantial question of law of general importance. The expression substantial question of law of general importance has not been defined in the Code, but it is clear that the High Court can grant certificate under Section 109 only when it is satisfied that the question of law involved in the case is not only substantial but also of general importance. In other words, the substantial question of law must be such that, apart from the parties to the litigation, the general public should be interested in determination of such question by the Supreme Court, e.g., it would affect a large number of persons or a number of proceedings involving the same question.5 Therefore, if the question is settled by the Supreme Court, the application of the principle to the facts of a particular case does not make the question a substantial question of law of general importance.
It is not sufficient that the case involves a substantial question of law of general importance, but, in addition to it, the High Court must be of the opinion that such question needs to be decided by the Supreme Court. The word needs suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and the High Court takes one view of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.
Procedure at Hearing.
Application for leave and certificate of fitness
Whoever desires to appeal to the Supreme Court shall apply by a petition to the court whose decree is sought to be appealed from. Ordinarily, such a petition should be decided within sixty days from the date of filing of the petition. Every petition should state the grounds of appeal and pray for the issue of a certificate
1. that the case involves a substantial question of law of general importance; and
2. that in the opinion of the court the said question needs to be decided by the Supreme Court. After notice to the other side, the court may grant or refuse to grant the certificate.
Security and deposit: Rules 7, 9 & 12
When the certificate is granted, the applicant should furnish security for the costs of the respondent and also deposit the expenses for translating, printing, indexing, etc. within the stipulated period. The court may revoke acceptance of security. The court has also the power to refund the balance of the deposit after necessary deductions for expenses.
Admission of appeal: Rule 8
Where the directions regarding furnishing of security and making of deposit are carried out, the court shall declare the appeal admitted, give notice thereof to the respondent and transmit the record to the Supreme Court. If the security furnished or the costs deposited appears to be inadequate, the court may order further security to be furnished or costs to be deposited. If the appellant fails to comply with such order, the proceedings shall be stayed and the appeal shall not proceed without an order of the Supreme Court. The execution of the decree shall not be stayed meanwhile.
Chapter 5
Conclusion
Having gone through the appellate procedure in India and the US, one is able to see that there are many differences and some similarities betweet the two. The US has a strongly federal constitution, so it has two different kinds of courts, state courts and federal courts. Every State has its own Supreme Court, and it's own rules of appellate procedure. It was not possible to examine all fifty states, therefore this project concentrates on the federal procedure. Here we can see similarities to the Indian procedure. The Supreme Court of the US is the Court of Final Appeal in federal matters. But the Supreme Court of the US generally handles only 150 cases in one year. The discretionary power of the US Supreme Court is much more than the Indian Supreme Court. India has only one system of courts, so all appeals can go to the Supreme Court. The First Appeal is a matter of right in both countries.
To conclude, it must be said that comparing the Indian procedure to the US procedure is rather difficult, because the hierarchy of courts is completely different. The attempt has been made however, and it is hoped that it is successful.
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