Page:The American Cyclopædia (1879) Volume I.djvu/630

 594 APPEAL 1848) ; Jung Stilling's Geisterkunde, translated into English under the title " Pneumatology " (New York, 1851) ; Dr. Brierre de Boismont's " Hallucinations, or the Rational Theory of Ap- paritions," &c. (English translation, Philadel- phia, 1853) ; Eobert Dale Owen's " Footfalls on the Boundary of Another World " (Phila- delphia, 1860), and his " Debatable Land " (New York, 1872). See also, in this work, DEMONOLOGY, SPIRITUALISM, and WITCHCRAFT. APPEAL, in law, the proceeding by which a decision of a court or judge is taken to a supe- rior tribunal for review. Though appeal is commonly used in the law to describe all revi- sory proceedings, yet the word strictly belongs to that remedy of the civil law which takes up the whole cause to the higher court and sub- jects facts as well as law to review. At com- mon law an appellate court takes cognizance characteristically only of matters of law. Mat- ters of fact in that system can be revised only upon a new trial. For example, if a party in a suit conceives that a verdict against him is not sustained by the evidence, he applies to the court where the case was tried for a new trial. Upon an appeal from the decision on that mo- tion, the appellate court may or may not sus- tain it ; but if it does not, it will not itself pro- nounce a verdict on the facts, but remits the cause to the lower court, to be tried there again by a jury. The review upon points of law is had at common law upon a writ of error, while the appeal is used in courts which follow the practice of the civil law. The distinction be- tween the two modes of review is now abol- ished in many of our states, but it still remains in the procedure of our federal courts. In ad- miralty and equity causes in those courts, mat- ters of fact as well as of law are ordinarily tried in the first instance by a judge without a jury ; and appeals from sentences or decrees in such causes carry up the whole case, and the appellate court passes upon the questions of fact and of law alike. But common law causes the ordinary issues, for example, which are tried with a jury go up to the appellate court upon a writ of error, and are revised there only in matters of law. The proceedings upon appeal are in all our states regulated by statutes. Indeed, without some such authority the right of appeal does not exist at all. The subject of appeal is ordinarily the final judg- ment or action of the inferior court, and it must be the final decision upon the substantial matter and merits of the cause. Orders of the court upon mere points of practice in the pro- gress of the action, which do not involve its merits, or which rest in the pure discretion of the court below, are not subjects of review. But a plain abuse of judicial discretion, or a clear mistake in exercising it, may give good grounds for appeal ; and so may the refusal of the court below to exercise a discretionary power on the mistaken ground that it did not possess it. A party cannot appeal from a judg- ment entered against him on his default or con- sent, nor from his own judgment of nonsuit, nor where he has agreed that the judgment of the lower court shall be final. The right to appeal may also be lost by taking proceedings on the footing of the decision, and especially by accepting any benefit under it. Properly, only a party to the record may appeal, and he only when he is aggrieved or injured by the decision ; but he may be injured by a judgment, even in his favor, which is less favorable to him than he is entitled to, and in such a case he may appeal. A party to the record loses his right of appeal when he ceases to have any interest in the subject of the suit. If a party to the record dies, the right of appeal does not exist in his legal representative until he is sub- stituted as a party in the action. When the matter comes before the appellate court, the presumption is in favor of the judgment below, and the question is whether for any cause the judgment shall be reversed. Unless there is a majority or other controlling vote for rever- sal, the judgment stands affirmed of course. As the appellate court is inclined to sustain the decision of the court below unless there is clear reason for reversing it, it will not look into any part of the judgment which is not ap- pealed from, nor take notice of any defects or insufficiencies in the proceedings below, unless they were formally objected to there unless, indeed, the insufficiencies not objected to could not have been cured by the opposite party be- low if the objection had been stated ; and even a ruling to which the appellant did object, but which has done him no substantial harm, will not be noticed. An erroneous charge of the judge below which is wholly extraneous and immaterial is no ground for reversal ; nor will a verdict be set aside for misdirection of a judge, if the court can see from the whole evidence that the result would have been the same, if the objectionable instruction had not been given, or when the whole evidence justifies the verdict. If a judgment is right in point of law, it is no reason for reversing it that it cannot be sustained on the ground on which the court below proceeded. When the appeal brings up questions as to the sufficiency of the evidence to support a verdict, an appellate court is dis- inclined to disturb the finding of the jury un- less it is clearly and certainly against the weight of the evidence, the theory of our law being that the jury is the best tribunal for de- ciding all matters of fact. The same principle applies to findings by referees or by judges trying causes without juries; and in such cases, especially when the evidence was con- flicting, the conclusions as to facts will not ordinarily be reversed. In all our states the statutes will be found to contain provisions re- lating to the conditions of appeals, namely, in respect to the time within which they must be taken, the security which must be given, and the effect of the appeal in staying proceedings on the judgment appealed from. As to the time for taking the appeal, if it is prescribed