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Domina Regina v. Paty, 2 Salk. 503, 91 Eng.Rep. 431 (1705). 600 JUDGMENT, EXECUTION AND APPELLATE REVIEW
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20. Domina Regina v. Paty, 2 Salk. 503, 91 Eng.Rep. 431 (1705). 600
Cli. 30
jection of Evidence, Prejudicial Remarks on the Part of Counsel in the Opening and Cosing Arguments, Misdirection of the Jury, and the like, there was, prior to 1285, No Method of Review, except by Motion for New Trial, which Motion was made After Verdict and Before Judgment, before the Court En Bane, sitting at Westminster, of which Court the Trial. Judge was usually a member. This Court could grant or refuse a New Trial as a matter of discretion, the exercise of which was not Reviewable at Common Law. The Writ of Error is usually brought by the Party or Parties against whom the Judgment was given; but it may be brought by a plaintiff to Reverse his own Judgment, if erroneous, in order to enable him to bring another action.21 But the defendant was not permitted to bring it contrary to his own agreement or that of his Attorney.22 In general, a Writ of Error was available for any Error or Defect in Substance that had not been Aided, Amended or Cured at Common Law, or by the effect of one or more of the Statutes of Amendments and Jeofails.23 Thus, the Entry of a Judgment in a Form inappropriate to the Specific Form of Action, constituted an Error of Law. And if the plaintiff brings an Action of Ejectment and omits the Allegation of Ouster, alleging only Title and Damages, such omission of a Substantive Allegation will be available on Writ of Error after Final Judgment. And in this connection, it should be observed that there was some doubt as to whether a Judgment on Demurrer could be Reviewed as a part of the Common-Law Record, without taking an Exception. Speaking to this very point in Hamlin v. Reynolds 24 21. Johnson v. Jebb, 3 Burr 1772, 97 Eng.Rep. 1091 (1705). 22. Cates t West, 2 T.R. 183, 100 Eng.Rep. 90 (1787). 23. See Chapter 20, Aider and Amendment 24. 22 Dl. 207, 200 (1859). Walker, 3., declared: “It is believed that no reported case can be found, either in Great Britain or this country, in which it has been held that it is necessary to Except to the Judgment on a Demurrer, to enable the Party to have the decision Reviewed in an Appellate Court. By the Ancient Practice it was the Final Judgment in the case, on the Count or Plea to which the Demurrer was interposed, and Leave to Amend or Plead Over was rarely if ever given. And the Judgment on Demurrer, by the Modern Practice, is Final, unless the Court in the exercise of its discretion permits an Amendment, or grants Leave to Plead Over. The Judgment on the Demurrer is as much a Part of the Record as any other Judgment that is rendered by the Court in the Cause. The Office of a Bill of Exceptions is to preserve that of Record, which otherwise would not Appear of Record. By the Practice of Courts of Common-Law Jurisdiction, the Evidence in a Cause, the Decisions of the Court in Admitting or Rejecting Evidence, Affidavits on Motions, and the Reasons Upon which Motions are Made, the Giving and Refusing Instructions, and Various Other Matters, do not Appear of Record, and are no part of it, unless embodied in a Bill of Exceptions, and by that means are made a part of the Record in the case. In the-decision of all such questions, the Judgment of the Court is not usually spread upon the Roll of its Proceedings. While Judgments by Default, on Demurrer, in cases of Nonsuit, Final Judgment on Verdict, etc., have by the practice at all periods, been so Entered and regarded as a Part of the Record. It would be improper practice, to embody a Judgment on a Demurrer in a Bill of Exceptions, as it would uselessly incumber the Record and unnecessarily add to the expense of litigation. The position that the Judgment on the Demurrer to the Second and Third Pleas in this case, was not Excepted to in the Court Below is-wholly untenable,” Sec. 323
601
The Writ of Error: Coram Nobis WHERE a Judgment was Erroneous in Point of Fact only, and Not in Point of Law, it could be reversed by the same Court, by Writ of Error Coram Nobis, or Quac Corant Nobis Resident, so called from its being founded on the Record and Process, which were -stated in the Writ to remain in the Court of the Lord the King, before the King himself; as where the defendant, being under age, appeared by Attorney, or the plaintiff or defendant was a married woman, at the Commencement of the Suit, or died before Verdict, or Interlocutory Judgment; for Error in Fact was not the Error of the Judges, hence reversing it was not reversing their own Judgment.
-of Error, Errors Apparent Upon the Face of the Common-Law Record, after Final Judgment, were Reviewable by Writ of Error. If the alleged Error was One Not Apparent Upon the Face of the Record, but consisted of an Error that occurred At the Trial, such 2~. In general on Appellate Review I y Bills of Exceptions, see: Treatises: 2 Tidd, The Practice of the court of King’s Bench in Personal Actions c. XXXVII, Of Trials by the Country and their IncIdents, 785—791 (Philadelphia 1807); Mansel, A Treatise on the Law nnd Practice of Demurrer to Pleadings and Evidence, of Bills of Exception; Wager of Law; Issue and Trial by Itceord, &c. (London 1828); Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, Of the Proceedings in an Action, from Its Commencement to its Termination, 120—121 (3d Am. ed. by Tyler, Washington, D. C. 1900); Gould, A Treatise on the Principles of Pleading, Pt. II, Procedure, e. I, Procedure In Gen— oral, 111—112 (0th ed. by Will, Albany 1909); Martin, Civil Procedure at Common Law, c. xiv, Trial, Verdict, Judgment and Execution, 368 (St Paul 1905). as the Improper Admission or Rejection of Evidence, Misdirection ofthe Jury, or Prejudicial Remarks on the Part of Counsel in Opening and Closing Arguments, and the like, prior to 1285, there was No Method of Review except by Motion for New Trial, which Motion, as we have seen, was made before the Court En Banc sitting at Westminster, of which Court the Trial Judge was frequently a member. This Court could grant or refuse to grant a New Trial in its discretion, the exercise of which at Common Law was not Reviewable. This Method of Review left the Aggrieved Party somewhat at the mercy of the Original Trial Judge, as he was usually a Part of the Reviewing Court En Banc, and it provided No Method for Review, after Judgment, of Errors which occurred At the Trial. Obviously, a New Method was needed by which such Errors could be incorporated into the Record. The Origin of the Bifl of Exceptions THE Method devised had its origin in that Great Remedial Statute of the Common Law, the Statute of Westminster II, 13 Edw. I, c. 31, 1 Statutes at Large 206 (1285), under which it was provided, in Substance, that where an Error occurred At the Trial, such as the Improper Admission of Evidence, the Aggrieved Party could allege an Exception; if the Exception was not allowed, he could reduce the Exception to Writing,26 have it Signed and Sealed by the Judge, and Attach it to the Record. This operation incorporated the alleged Errors into the Record and when the Writ of Error issued, not only those Errors Apparent Upon the Face of the Common-Law Record, if any, but also those Errors which occurred At the Trial, and which had now been incorporated by means 26. The time for reducing the exception to writing was not prescribed by the statute, but it was held in the case of Wright -r. Sharp, 1 Salk. 288, 250, 91 Eng. Rep. 255, 258 (1705), that reason required the substance of the exception be reduced to writing when taken and disallowed. 602
JUDGMENT, EXECUTION AND APPELLATE REVIEW Ch. 30 of the force and effect of Chapter 31 of the Statute of Westminster U, also went up to the Appellate Court for Review. And thus the explanation of the distinction between Matters on the Record, and Matters in the Record, or, as sometimes otherwise expressed, between Matter of Record and Matter of Exception, Matter of Record consisting of Errors Apparent Upon the Face of the Strict Common-Law Record; Matter of Exception referring to those Errors placed in the Record by the Bill of Exceptions. STATUS UNDER MODERN CODES, PRACTICE ACTS AND RIfLES OF COURT
Where the Action is Equitable in Nature, Questions of both Law and Fact are Reviewed on Appeal, as was traditionally the case in Equity. In 1848 the New York Code of Civil Procedure made an Appeal the only Form of Review in that State. Other States abolished the Writ of Error, but created a System of Review which included a Review of Legal Causes by Proceedings in Error, and for Equitable Causes Review on the lines of the Appeal in Chancery.2~ An Appeal in New York was at that time regarded as a New Action.2° In those States which did not adopt the New York Statutory Appeal, an Appeal in the Nature of a Writ of Error was adopted, including Alabama in 1853, Connecticut in 1882 and 1889, and Pennsylvania in 1889.20 The Method of Appeal in New York, being entirely Statutory, it was available only in the situations specifically provided for by the 27. Pound, Appellate Procedure in Civil Cases, c. IV, Appellate Procedure in the United States to the End of the Nineteenth Century, 260 (Boston 1941). 15. Pratt v. AlIen, 19 How.Pr. 450. 456 (1858). 19. Pound, Appellate Procedure in Civil Cases, c. XV, Appellate Procedure in the United States to the End of the NIneteenth Century, 261 (Boston 1941). Code. In States where there was a Concurrence of Review by a Writ of Error and an Appeal in the Nature of Error, the term “Appeal” began to be regarded as covering both Types of Review. This gradual merger of the two principal Modes of Review was a byproduct flowing from the introduction of Equitable Defenses and Equitable Relief in Actions at Law. - In the States today, Review on Appeal is generally a Statutory Proceeding, with more of the characteristics of the Common-Law Writ of Error, rather than the Appeal in Equity, by which the whole cause was removed from a lower to an Appellate Court, and there tried tie novo without reference to the conclusions of the Inferior Court. The Modern Appeal is more in the nature of a Writ of Error, in that the Appellate Court does not try the cause afresh or hear evidence. It is regarded as a continuation of the Original Litigation.
Act of April 26, 1928, c. 440. The wisdom of this enactment has been iiuestioned, see, The Supreme Court Under the Judiciary Act of jg~, 42 flarv.L. Rev. 1, at 27—29 (1928).
Sec. 324
APPELLATE REVIEW 603
with respect to the Scope of Review for Actions at Law and in Equity. Perhaps the most significant difference was that Appeals from Judgments of Law Courts continued to be limited to Review of Questions of Law only, whereas an Appeal from an Equitable Decree permitted Review of the Facts as well as the Law.32 Today, the basic Federal Judicial Structure is composed of District Courts,33 Courts of Appeals ~<‘ and the Supreme Court.35 The District Courts “are the Trial Courts of the System” and exist in each of the numerous Judicial Districts established by Statute.36 Decisions of the District Court are Appeal 35. Marker, Federal Appellate Jurisdiction and ProCetiure, 272—270 (Chicago 3935). 33. Sections 81—132, 3331—1359, Title 28 U.S.C.A. U- Sections 41—48, 1201—12.94, Title 28 U.S.C.A. 35- Seeiions 1—40, 1251—3257, Title 28 JJ.S.C..A. There arc, of course, other Federal Courts such as, for example, the Court of Claims (Sections 171—175, Title 28 TJ.S.C.A.), the Court of Customs and Patent Appeals (Sections 211—216, Title 28 U.S.C.A.), the Customs Court (Sections 251—255, Title 28 U.S.CA.). The “Tax Court of the United States” is strictly speaking, not a Court but rather “an independent agenc-y in the Executive Branch of the Government”, l4unn, .lurisdietion and l’ractice of the Courts of the United States, 33 (St. Paul, 1949). 36. Bunn, Jurisdiction and Practice of the Courts of the United States, 31 (St. Paul, 1949); See Sections 81—131, Title 28 U.S.C.A., for enumeration and location of these Judicial Districts. able as of Right to the Court of Appeals, “except where a Direct Review may be had in the Supreme Court.” ~ The distinction between Appeals in Actions which are Legal in Nature, and those which are Equitable in Nature, is maintained, with the Appellate Court reviewing Questions of Law as to the Former and both Law and Fact as to the Latter,33 except that the Appellate Court also reviews Questions of both Law and Fact in Actions which are Legal in Nature when the Action is tried by a Court without a Jury.39 In Actions which are Equitable in Nature, and those which are Legal in Nature and tried by a Court without a Jury, the Findings of Fact of the Trial Court may, however, be set aside by the Appellate Court only when they are dearly erroneous, and provided due regard is given to the opportunity of the Trial Court to judge the credibility of witnesses.4° 37. Section 1291, Title 28 U.SC.A. This section by its terms refers only to “flnal” decisions of the District court; however, the following sectIon, 1292, permits Appeals also from certain interlocutory decisions. 33. Burns Bros. v. Cools Coal Co., (3d Cir. 1930) 42 F.2d 109; See 6 Ohllnger, Jurisdiction and Procedure of the Courts of the United States in Civil Actions, 590 (cincinnati, 1954). 39. Federal Rule of Civil Procedure 52(a), Title 28 U.S.C-A. - 40. Ibid. TABLE OF CASES References are to Pages Abbott v. Kimball, 201 Abe Lincoln Mut. Life & Accident Aber V. Bratton, 267 Abererombic v. parkburst, 268 Abington v. Lipscombe, 222 Abrahams V. Sones, 576 Aeerro v. Pctrone, 113 Ackcrson v. Eric Ri’. Co., 104 Acme Food Co. v. Older, 345 Acton V. Simonds, 355 Acton v. Symon, 320 Adair v. Loft, 233 Adair’s Adm’r v. Rogers’ Adnfr, 361 Adam v. Arnold, 304 Adams v. Abram, 598 Adams v. Adams, 503 Adams v. Barry, 129 Adams v. Clark, 221 Adams v. Columbian Steamboat Co., 357 Adams v. Crosby, 342 Adams v. Cross, 117 Adams v. Filer, 515 Adams v. Freeman, 168 Adams v. Gardner, 129 Adams v. Bemmenway, 154, 166, 176, 177 Adams v. Munter, 578 Adams v. O’Connor, 161, 830 Adams v. Richardson, 201 Adams v. Wiggin, 421 Adams v. Wood, 268 Adamson v. Jarvis, 189 Addams v. Tutton, 305 Addington v. Allen, 575 Addison v. Overend, 421 Adler v. Prcstwood, 246 Admiralty Com’rs v. The Amcrika, 165 Aetna Ins. Co. v. phelps, 331 Aetna Life Ins. Co. v. Hoppin, 242 Ahitbol v. Benneditto, 113, 114 Ainslie v. Martin, 413 Ainsworth v. Partillo, 219 Aireton v. Davis, 201 Akerley v. Halnes. 161, 165. 192 Alabama Consol. Coal & Iron Co. v. Heald, 561 Alabama Fuel & Iron Co. v. Bush, 94 Albert v. Seilcr, 570 - AllAn v. Talbot, 98 Alderman v. Way, 159 Alderson V. Ennor, 352 AMine Mfg. Co. v, Barnard, 343, 358 Aleberry V. Walby, 333 Alex v. Shalala, 239 Alexander v. Capital Paint Co., 340 Alexander v. Shalala, 230 Alexander v. Vane, 351 Algeo v. Algco, 341, 359 Allen v. Colliery Engineer Co., 525 Allen v. Crary, 280 Allcn v. Ford, 358 Anderson v. Martlndale, 423 Anderson v. Talcott, 500 Anderson v. Todesco, 208 Andrew v. Deshler, 200 A Soc. v. Miller, 348 Allen v. Gray, 108 Allen v. Hartfield, 330 Allen v. Lucket, 425 Allen v. McKibbin, 342, 359 Allen v. Oppenheimer, 200 Allen v. Patterson, 12, 22, 90, 299, 300 Allen v. Scott, 7, 520, 521 Allen v. Smith, 213, 285 Allen v. Taylor, 113 Allen v. Player, 160 Allen v. Tnscarora Val, Ry. Co., 526, 559 Allen V. Watt, 420 Allen Clark Co. v. Praneovich, 94 Allied Amusement v. Glover, 309 Allis-Chalmers Mfg. Co. v. City of ChIcago, 561 Almada V. Vandecar, 263 Almond v. Bonnell, 118, 238 Almy V. Rarris, 201, 297 Alsope V. Sytwell, 137 Altes v. thnckler, 208 Ambler v. Whipple, 505 Ambrose v. Roe, 364 American lIsp. Co. v. haggard, 428 American Trading & Storage Co. v. Gottstein, 399 Amburst v. Sky,mer, 146 Amory V. Flyn, 209 Amos v. Cosby, 308 Anderson v. Boneman, 267 Anderson v. Courtrigbt, 235 Anderson v. Hapler, 257 Anderson v. Lewis, 418
605
Androseoggin Water Power Co. v. Metcalf, 358 Andrus v. Waring, 525, 528 Anheuser~Busch Brewing Ass’n v. Bond, 398 Anniston Electric & Gas Co. v. Rosen, 147 Anonymous, 162, 191, 260, 278, 280, 290, 334, 454, 455, 471, 490, 555 Aasorge v. Kane, 407 Anthony v. Wilson, 503 Applebee V. Rumery, 180 Appleby v. Brown, 311, 312 Appleton v. Barrett, 268 Appo V. The People, 597 Arasmith V. Temple, 165, 193 Archer v. C]aflin, 120 Archibald v. Argall, 420 Arden V. Pullen, 357 Arizona Commercial Mining Co., 105, 208, 352 Arlett v. Ellis, 441 Anus v. Ashley, 351 Armstrong v. Cooley, ISO Armstrong v. Webster, 149, 476 Arnold v. Dodson, 352 Arnold v. Foot, 179 Arnold v. Jefferson, 213 Arthur v. Griswold, 194 Arthur v. Ingels, 251 Arthur v. Richards, 387 Ashley v. Root, 187 Aslin V. Parbin, 240 Atkins v. Barnstal,le County, 359 Atkins v. Byrnes, 499 Atkins v. Lewis, 233 Atkinson v. Baker, 200, 247 Atkinson v. Bell, 288, 358 Atkinson v. Scott, 351 Atlanta & W. P. R. Co. v. Jacobs’ Pharmacy Co., 331 Atlantic Mut. Fire Ins. Co. V. Young, 332 Atlantic Refining Co. v. Feinberg, 254 Atlas Shoe Co. v. Beehard, 212, 218 Atlee v. Baclthouse, 352 Attersoll v, Steve,]s, 189 Attorney General v. Meller, 122, 123 Atwood v. Davis, 431 Atwood v. Lucas, 344 Aubery V. James, 445 Auburn & Dwasco Canal Co., The v. Lelteb, 400, 403, 404, 477 Auditor v. Woodruff, 880, 598 Augusta, City of v. Moulton, 514 Aurora Trust & Savings Bank v. Whildln, 478 Austen V. Gervas, 133 Austin v. Dills, 126 Austin v. Jervoyse, 133 Avery v. Inhabitants of Tyringham, 324, 573 Avery v. Spieer. 171, 172 Axford v. Mathews, 214 Aycr v. Bartlett, 157, 183 Ayes v. Hewett, 266 Ayliff V. Arehdale, 321 Azparren v. Ferrel, 257, 263 B Baals v. Stewart, 212 Babb v. Mackey, 201 Babcock v. Trice, 516 Bach v. Owen, 329 Bacon v. Davis, 267 Bacon v. Sehepflin, 420, 429 Backus v. Clark, 110 Badger v. Batavia Paper Mfg. Cc., 219 Badkin v. Powell, 486 Badlam v. Tucker, 213 Bagagiio v. Paolino, 319 Bailey v. Adams, 218 Bailey v. Bussing, 326 Bailey v. Clay, 329, 331 Bailey v. Cowles, 501 Bailey v. Ellis, 262 Bailey v. Freeman, 326 Bailey v. Valley Nat. Bank, 513 Baillie v. Columbia Gold Mm. Co., 77 Bain v. Hunt, 361 Baker v. Bailey, 445 Baker v. Beers, 222 Baker v. Blackman, 441 Baker v. Corey, 340 Baker v. Dumbolton, 97 Baker v. Fales, 264, 266, 267 Baker v. Faweett, 516 Baker v. Fuller, 330 Baker v. Howell, 215 Baker V. Jameson, 325 Baker v. KIng, 160 Baker v. Lauterbaeh, 343 Baker v. Lothrop, 221 Baker v. Morphew, 198 Balcom V. Craggin, 327 Baldridgc v. Allen, 167 Baldwin v. City of Aberdeen, 403 Baldwin v. Cole, 219, 221 Baldwin v. Whittier, 169 Ball v. Fatterson, 216 Ballance v. Flood, 233 Ballou v, O’Brien, 268 Baltimore & 0. B. Co. v. PoIljç Woods & Co., 340, 471 TABLE OF CASES References are to Pages 606 Andrews v. Allen, 312 Andre~vs v. C-allenth’r, 320 .Aaidrews V. Hoeslich, 267 Andrew’s v. Ives, 321 Andrews v. Montgomery, 361 Andrew’s v. Morris, 125 Andrew’s v. Thayer, 108 Andrews v. Whiteliend, 111, 132, 136, 327 Andrews V. Williams, 126 Andros v. Childors, 376 Co. v. Iron Cap Copper Baltimore & 0. & C. B. Co. v. flUnols CenC~ K Cc., 490 Bane v. Detrick, 221 Banik v. Bishop-Stoddard Cafeteria Co., 336 Bank of Bristol V. Ashworth, 411 Bank of Buffalo v. Crouch, 264 Bank of Columbia v. Hagner, 330, 340 Bank of New Brunswick v. Arrowsmitb, 72 Bank of New South Wales v. O’Connor, 251 Bank of Orange County V. Brown, 188 Bank of United Stotes v. Smith, 541 Banks v. Whetstone, 247 Bannister v. Read, 341, 342 Bannister v. Victoria Coal & Coke Co., 324, 364 Banorgee v. Hovey, 320, 321 Banyer V. Empie, 235 Barber v, Chester County, 276 Barber v. Rose, 516 Barber v. Summers, 145 Barber v. Vincent, 397 Barbour v. Breckenridge, 505 Barhour’s Adm’rs v. Areher~ 126 ‘Barclay v. Howell, 238 Barkeloo v. Randall, 168 Barker v. Braharn, 168 Barker v. Chase, 161 Barker v. Justice, 559 Barker v. Lade, 126, 127 Bark-er v, Miller, 213 Barkhamstcd, Town of v. Parsons, 297 Barley v. Roosa, 115 Barlow v. Garrow, 576 Barnard V. Duthy, 332 Barnard v. Poor, 180 Barnes V. Bartlett, 265 Barnes v. Brookman, 575, 576 Barnes v. Cole & Fitzhugh, 178 Barnes v. ford, 165, 193 Barnes r. Jcenyon, 105 Barnes v. Northern Trust Co., 144 Barnett v. Barnett, 400 Barnett v. Phelps, 198 Barney V. Dewey, 189 Barnitz V. Casey, 235 Barnum V. Landon, 311, 312, 316 Barnum v. Martin, 187 Barnum s’. Stone, 209, 219 Barr V. Craig, 352 Barrett V. Carden, 294, 295 Barrett V. Douglas Park Bldg. Ass’n, 285 Barrett v. McAllister, 510 Barrons v. Ball, 199 Barrow V. Burbridge, 555 Barry V. Peterson, 154, 166, 176, 177 Bartholomew v. Jackson, 319 Bartlett V. Perkins, 159, 190 Bartlett V. Prescott, 480 Barton v. Dunning, 212 Barton v. Webb, 134 Barwjck v. Barwlck, 213 Bascom V. Dempsey, 157 Basset V. Maynard, 210 Bateman V. Allen, 122
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