Gambar halaman
PDF
ePub

taken.

attorney of the adverse party, who acted as attorney of record in the District Court, at the time of the rendition of the judgment, and also on the clerk of the District Court, by which the judgment was rendered, a notice in writing of the taking of the appeal from the judgment. [Code, § 4023.]

SEC. 46. The appeal is deemed to be taken when the notices When deemed thereof required by the last section, are filed in the office of the clerk of the court in which the judgment was rendered, with evidence of the service thereof indorsed thereon, or annexed thereto. [Code, § 4524.]

Transcript:

what to contain.

SEC. 47. When an appeal is taken, it is the duty of the clerk of the court, in which the judgment was rendered, without unnecessary delay, to make out a full and perfect transcript of all the papers in the case on file, in his office (except the papers returned by the examining magistrate, on the preliminary examination, where there has been one, and the minutes of the evidence of the witnesses examined before the grand jury), and of all entries made in the record book, and certify the same under his hand and the seal of the court, and transmit the same to the clerk of the Supreme Court. [Code, § 4525.]

SEC. 48.

An appeal taken by the State in no case stays the Stay of judg. Operations of the judgment in favor of the defendant. [Code, § 4527.]

ment.

Same.

Defendant detained in custody.

SEC. 49. An appeal taken by the defendant does not stay the execution of the judgment, unless bail be put in, except as provided in the next section. [Code, § 4528.]

SEC. 50 Where the judgment is imprisonment in the penitentiary, and an appeal is taken during the term at which the judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, it may in its discretion order the sh riff or officer having the defendant in custody, to detain him in custody, without taking him to the penitentiary, to abide the judgment on the appeal, if the defendant desire it. [Code, § 4529.]

SEC. 51. When an appeal is taken by the defendant, in a bailBail on appeal. able case, and bail is put in, it is the duty of the clerk to give forthwith to the defendant, his agent or attorney, a certificate under his hand and the seal of the court, stating that an appeal has been taken and bail put in, and the sheriff or other officer having the defendant in custody must, upon the delivery of such certificate to him, discharge the defendant from custody, where imprisonment forms any part of the judgment, and cease all further proceedings in execution of the judgment, and return forthwith to the clerk of the court, who issued it, the execution or certified copy of the entry of judgment, under which he acted, with his return thereto, if such execution or certified copy has been issued, and if such execution or certified copy has not been issued, it shall not be issued, but shall abide the judgment on the appeal. [Code, § 4530.]

Appeal by
co-defendants.

Docketing of appeal.

SEC. 52. When several defendants are indicted and tried jointly, any one or more of them may join in taking the appeal, but those of their co-defendants who do not join shall take no benefit therefrom, yet they may appeal afterward. [Code, § 4526.] SEC. 53. The party taking the appeal is known as the appellant, the adverse party as the appellee, but the title of the action

is not changed in consequence of the appeal; it shall be docketed in the Supreme Court as it was in the District court.

[Code,

$4531.]

V. OF THE TRIAL, DECISION AND EXECUTION.
1. In Civil Cases.

assignment of

SECTION 54. An assignment of error need follow no stated Form of form, but must, in a way as specific as the case will allow, point errors. out the very error objected to. Among several points in a demurrer or in a motion, or instructions, or rulings in an exception, it must designate which is relied on as an error, and the court will only regard errors which are assigned with the required exactness; but the court must decide on each error assigned. [Code, $3207.]

motions.

SEC. 55. All motions must be entered in the motion book, and Hearing of shall stand over till the next morning after that morning on which entered, and till after being publicly called by the court, unless the parties otherwise agree, and the adverse party shall be deemed to have notice of such motion. Motions will not be heard until the day set for hearing causes from the district whence the cause comes, in which the motion is made. [Code, $ 3208.]

the case.

motion.

briefs or arguments:

SEC. 56. Motions made in cause after judgment, or after the Notice of time assigned for the hearing of causes from the district from which it was appealed, will be heard only upon proof of service of reasonable notice of such motion upon the adverse party. SEC. 57. To entitle an appellant to submit his case either Service of orally or in print, he must serve copies of his brief of points and authorities or argument on counsel for each of the appellees at filing, least thirty (30) days before the day assigned for the hearing of The appellee shall serve copies of his brief or argument upon counsel for each appellant at least ten (10) days before the hearing, and the reply, if in print, shall be served at least three (3) days before the case is to be finally submitted. Each party shall file with the Clerk ten (10) copies of each brief or argument before the case is so submitted. A failure to comply with the above requirements will entitle the party not in default, unless the court shall for sufficient cause otherwise order, to a continuance, or to have the case submitted at his option upon the brief and argument on file when the default occurred. All briefs and arguments shall be prepared and printed as required by sections 94, 98 and 99 hereof.

[As amended by order of court June 14th, 1879.]

ments

SEC. 58. All arguments in addition to oral ones shall be in Printed arguprint; proper evidence of the service upon opposing counsel of printed matter in a cause shall be filed therewith, and the clerk shall note upon the docket the date of each service. All manuscripts and printed arguments shall be filed with the Clerk, and he shall not transmit to the Judges any paper not served and filed in time under the rules, nor shall any argument or brief be considered which does not go through the hands of the Clerk. No cause shall be entered as submitted until the arguments are finally and actually concluded.

[As amended by order of court, June 14th, 1879.]

Oral arguments.

Order of hearing.

Calling of docket.

Written

opinions.

Dissent.

reported.

SEC. 59. Only two counsel will be heard on either side, and no oral argument shall exceed one hour in length, unless an extension of time be granted before the argument is commenced.

SEC. 60. When the appeal presents to the court only questions. of law upon rulings of the court below, the appellant shall open and close the argument; but when the trial in the Supreme Court is de novo of questions of fact, the party having the burden of proof shall open and close, and, as to printed briefs and arguments, shall observe the rules requiring the filing of such briefs and arguments by appellants.

SEC. 61. At the commencement of each term the causes will be called in their order, but no cause will be tried on the first calling. [Rule 15, June Term, 1861, printed in 11 Iowa, 605, modified.]

SEC. 62. The opinions of the court on all questions reviewed on appeal as well as such motions, collateral questions, and points of practice as they may think of sufficient importance, shall be reduced to writing and filed with the clerk of the court.

All dissenting opinions must be written and filed in the same

manner.

The records and reports must in all cases show whether a decision was made by a full bench, and whether either, and if so which, of the judges dissented from the decision. [Code, §§ 143, 154.]

SEC. 63. If the decision, in the judgment of the court, is not What opinions of sufficient general importance to be published, it shall be so designated, in which case it shall not be reported in the reports, and no case shall be reported except by order of the full bench. [Code, § 145.]

Judgment on appeal.

Judgment on bond.

Damages allowed.

Judgments: how enforced.

Writ of restitution.

SEC. 64. The Supreme Court may reverse or affirm the judg ment or order below, or the part of either appealed from, or may render such judgment or order as the court below or judge should have done, according as it may think proper. [Code, § 3194.]

SEC. 65. The Supreme Court. where it affirms the judgment, shall also, if the appellee moves therefor, render judgment against the appellant and his sureties on the bond above mentioned, for the amount of the judgment, damages, and costs referred to therein, in case such damages can be accurately known to the court without an issue and trial. [Code, § 3195.]

SEC. 66. Upon the affirmance of any judgment or order for the payment of money, the collection of which, in whole or in part, has been superseded by bond, as above contemplated, the court shall award to the appellee damages upon the amount superseded; and, if satisfied by the record that the appeal was taken for delay only, must award such sum as damages, not exceeding fifteen per cent. thereon, as shall effectually tend to prevent the taking of appeals for delay only. [Code, § 3196.]

SEC. 67. If the Supreme Court affirm the judgment or order, it may send the cause to the District Court to have the same carried into effect, or it may itself issue the necessary process for this purpose, and direct such process to the sheriff of the proper county, according as the party thereto may require. [Code, 3197.]

SEC. 68. If, by the decision of the Supreme Court, the appel

tion.

lant becomes entitled to a restoration of any part of the money Writ of restituor property that was taken from him by means of such judgment or order, either the Supreme or District Court may direct execution or writ of restitution to issue for the purpose of restoring to such appellant his property or the value thereof. [Code, § 3198.] SEC. 69. Executions issued from the Supreme Court shall be Executions the same as those from the District Court, attended with the same consequences, and shall be returnable in the same time. [Code, § 3215.

from supreme

court.

SEC. 70. In cases in which the judgment below is affirmed in same. this court, the parties in whose favor the judgment is affirmed may have execution either from this court or the court below. In case of an execution from this court, if the process of garnishment is served upon the execution defendant, either principal or surety, the sheriff, in addition to his return, shall return a copy of the ex- Return of ecution and his returns to the District or Circuit Court from which sheriff. the cause was appealed, and all issues of fact which may arise in said garnishment process shall be tried by that court.

SEC. 71. The court shall hear all the cases docketed, when not Hearing of continued by consent, or for causes shown by the party, and the causes. party may be heard orally or otherwise, in his discretion. [Code, § 3204.]

SEC. 72. No cause is decided until the opinion in writing is Filing of filed with the clerk. [Code, § 3205.]

2. In Criminal Actions.

opinion.

criminal

causes.

SEC. 73. Appeals in criminal cases shall he docketed in the Hearing of Supreme Court for trial, at the commencement of that portion of the term which has been assigned for trying causes from the judicial district from which the appeal comes, which is twenty days after the date of the certificate of the transcript from the clerk of the district, and if the appellant does not file his transcript by that time with the clerk of the Supreme Court, the appellee my file his, and have the case docketed. They shall take precedence of all other business, and shall be tried at the term at which the transcript is filed, unless continued for cause, or by consent of he parties, and shall be decided, if practicable, at the same term. [Code, § 4532.]

defendant.

SEC. 74. The personal appearance of the defendant in the Su- Appearance of preme Court, on the trial of an appeal is in no case necessary. [Code, § 4533.]

defects.

SEC. 75. An appeal shall not be dismissed for any informality Correction of or defect in taking the appeal, if the same be corrected within a reasonable time, and the Supreme Court must direct how it shall be corrected. [Code, § 4534.]

SEC. 76. No assignment of error, or joinder in error, shall be Assignment necessary. [Code, § 4535.]

of errors.

SEC. 77. The defendant shall be entitled to close the argu- Defendant to ment. [Code, § 4536.]

close.

SEC. 78. The opinion of the Supreme Court must be in writing, Opinion. filed with its clerk, and recorded. [Code, § 4537.]

SEC. 79. If the appeal was taken by the defendant from a judg- Judgment on ment against him, the Supreme Court must examine the record the merits. and, without regard to technical errors or defects, which do not

ment on appeal by state.

affect the substantial rights of parties, render such judgment on the record as the law demands. It may affirm, reverse, or modify the judgment, and render such judgment as the District Court should have rendered, and may, if necessary or proper, order a new trial. It may reduce the punishment, but cannot increase it. [Code, § 4538.]

SEC. 80. If the appeal was taken by the State, the Supreme Effect of judg., Court cannot reverse the judgment, or modify it, so as to increase the punishment, but may affirm it, and shall point out any error in the proceedings, or in the measure of punishment, and its decision shall be obligatory on the District Court, as the correct exposition of the law. [Code, § 4539.]

Discharge on reversal.

Effect of affirmance.

Judgment recer led: procedendo.

Further proceedings in lower court.

Judgment enforced.

Term of

deducted

SEC. 81. If a judgment against the defendant be reversed, without ordering a new trial, the Supreme Court must direct, if the defendant be in custody, that he be discharged, or if he be admitted to bail, that his bail be exonerated, or, if money be depos ́ited instead of bail, that it be refunded to him. [Code, § 4540.]

SEC. 82. On a judgment of affirmance against the defendant, the original judgment shall be carried into execution, as the Supreme Court shall direct, except as hereinafter provided. [Code, § 4541.]

SEC. 83. When a judgment of the Supreme Court is rendered it must be recorded, and a certified copy of the judgment must be forthwith remitted to the clerk of the District Court in which the judgment appealed from was rendered, with proper instructions, and a copy of the opinion, in such time, and in such manner, as the Supreme Court may, by rule, prescribe. [Code, § 4542.]

SEC. 84. After the certified copy of the entry of the judgment of the Supreme Court, and its instructions, have been remitted, as provided in the preceding section, the Supreme Court has no further jurisdiction of the proceedings therein, and all proceedings which may be necessary to carry the judgment of the Supreme Court into effect must be had in the court to which it is remitted, or by the clerk thereof, except, as provided in the next two sections. [Code, § 4543.]

SEC. 85. Unless where some proceedings in the District Court are directed by the Supreme Court, a copy of the certified copy of the judgment of the Supreme Court, with its directions certified by the clerk of the District Court, to whom the same has been transmitted, delivered to the sheriff or other proper officer, shall authorize him to execute the judgment of the Supreme Court, or take any steps to bring the proceedings to a conclusion, except as provided in the next section. [Code, § 4544.!

SEC. 86. If a defendant, who has been imprisoned during the pendency of an appeal, upon a new trial ordered by the Supreme imprisonment Court, shall be again convicted, the period of his former imprisonment shall be deducted by the District Court from the period of imprisonment to be fixed, on the last verdict of conviction. [Code, § 4545.]

from term of second sentence.

Limitation.

VI.-REHEARING.

SEC. 87. No petition for rehearing shall be filed after sixty days from the filing of the opinion of this court.

« SebelumnyaLanjutkan »