cases are disposed of on the basis of the appeal papers without oral argument or further briefing.

Since the jurisdiction over appeals is obligatory, one would also suppose that appeal procedure would be simpler than in cases in which counsel must first request the Court to review. In fact, however, precisely the opposite is the case. The procedure governing most appeals to the Supreme Court is the last vestige of the archaic and otherwise discarded practice followed in the federal courts generally before the Court itself approved the Federal Rules of Civil Procedure, which established a much simpler procedure for appealing to the courts of appeals.

Direct criminal appeals to the Supreme Court are governed by the Federal Rules of Criminal Procedure, Rules 37 to 39, discussed at greater length at pp. 240-2, infra. They provide for the filing merely of a Notice of Appeal-such as is used in appealing to a court of appeals-and a Jurisdictional Statement, the latter being the document required by Supreme Court Rule 12 (1) discussed infra, pp. 213-25. But other appeals to the Supreme Court are governed by Supreme Court Rules 36, 9, 10, 11, 12 and 13. Although it is to be hoped that the Court will eventually abandon the cumbersome procedure which still is prescribed for most appeals, it has not done so. Accordingly, it is necessary to describe the course which counsel must now pursue.

A. Time for appeals

The time allowed for appeals to the Supreme Court in other than federal criminal cases is prescribed by 28 U.S.C., §2101 (1948). The time for federal criminal cases is stated in Federal Rules of Criminal Procedure, Rule 37 (a).

1

1 A special jurisdictional act may contain different provisions as to the time of appeal. E.g., Act of May 22, 1936, c. 444, 49 Stat. 1369-1370, applicable to United States v. Northern Pac. Ry., 311 U. S. 317,

VI

PROCEDURE ON APPEALS

The cases over which the Supreme Court has jurisdiction by appeal are described in Chapters II and III, supra. The procedure on appeals described in this chapter governs all types of cases coming to the Supreme Court by way of appeal-appeals from three-judge federal district courts (28 U.S.C. §1253), from ordinary district courts in certain antitrust cases (15 U.S.C. §29) and cases under the Interstate Commerce Act (45 U.S.C. §45), when a federal statute has been held unconstitutional (28 U.S.C. §1252), and under the Criminal Appeals Act (18 U.S.C. (1948) §3731), from the federal courts of appeals (28 U.S.C. $1254 (2)), from state courts (28 U.S.C. §1257 (1) (2)), and under special statutes allowing appeals as of right in particular cases (see p. 44, supra).

The procedure in all of these classes of cases is the same, except for direct federal criminal appeals which are governed by the Federal Rules of Criminal Procedure; the difference between the procedure in such cases and that in other appeals is treated at pp. 240-2, infra. In the few cases arising under special statutes, the provisions of the particular statute will, of course, govern. But, except as such statutes otherwise provide, the general procedure here described is applicable.

The primary theoretical difference between cases coming to the Supreme Court by way of appeal and those which come by way of certiorari is that in the former the Court is supposed to be obligated to review the judgment of the lower court, whereas in the latter review is discretionary. Even in cases coming by appeal, however, which currently comprise about seven percent of the Court's business, more than half of the

200

cases are disposed of on the basis of the appeal papers without oral argument or further briefing.

Since the jurisdiction over appeals is obligatory, one would also suppose that appeal procedure would be simpler than in cases in which counsel must first request the Court to review. In fact, however, precisely the opposite is the case. The procedure governing most appeals to the Supreme Court is the last vestige of the archaic and otherwise discarded practice followed in the federal courts generally before the Court itself approved the Federal Rules of Civil Procedure, which established a much simpler procedure for appealing to the courts of appeals.

Direct criminal appeals to the Supreme Court are governed by the Federal Rules of Criminal Procedure, Rules 37 to 39, discussed at greater length at pp. 240-2, infra. They provide for the filing merely of a Notice of Appeal-such as is used in appealing to a court of appeals—and a Jurisdictional Statement, the latter being the document required by Supreme Court Rule 12 (1) discussed infra, pp. 213-25. But other appeals to the Supreme Court are governed by Supreme Court Rules 36, 9, 10, 11, 12 and 13. Although it is to be hoped that the Court will eventually abandon the cumbersome procedure which still is prescribed for most appeals, it has not done so. Accordingly, it is necessary to describe the course which counsel must now pursue.

A. Time for appeals

The time allowed for appeals to the Supreme Court in other than federal criminal cases is prescribed by 28 U.S.C., §2101 (1948).1 The time for federal criminal cases is stated in Federal Rules of Criminal Procedure, Rule 37 (a).

1A special jurisdictional act may contain different provisions as to the time of appeal. E.g., Act of May 22, 1936, c. 444, 49 Stat. 1369-1370, applicable to United States v. Northern Pac. Ry., 311 U. S. 317,

Where federal statute held unconstitutional. Section 2101 (a) provides that direct appeals to the Supreme Court from decisions "holding unconstitutional in whole or in part any Act of Congress, shall be taken within thirty days after the entry of the interlocutory or final order, judgment or decree.'

Other civil cases from United States district courts. Other direct appeals from decisions of the United States district courts in civil actions are required to be "taken within thirty days from the judgment, order or decree appealed from, if interlocutory, and within sixty days if final." Section 2101 (b).

Federal criminal cases. The only direct appeals from district courts to the Supreme Court in federal criminal cases are those allowed to the Government under the Criminal Appeals Act, 18 U.S.C. §3731 (1948). Such appeals must be taken within thirty days after entry of the judgment or order appealed from. Rules of Criminal Procedure, Rule 37 (a) (2).

Other appeals. All other appeals, not in the classes described in the three preceding paragraphs, must be taken within ninety days after the entry of the judgment or decree below. Section 2101 (c); Rule 382. The classes of cases governed by this provision are primarily those listed in 28 U.S.C. §1254 (2) and $1257 (1) and (2), (described in more detail in Chapters II and III, pp. 16-19, 49-55, supra), in which the highest court of a state has held a federal statute or treaty invalid, or a state statute valid as against a charge of repugnance to the Constitution, treaties or laws of the United States, and in which a United States court of appeals has held a state statute to be repugnant to the Constitution, treaties or laws of the United States.

No extensions allowed. The time limits for taking appeals may not be extended. It is to be noted that §2101 (c) permits a Justice in certiorari cases to extend the ninety-day period for up to an additional sixty days, but makes no such provision for an extension in appeals.

Method of computing time-from when. Although the number of days allowed for taking appeals differs in some types of cases from the number allowed for petitioning for certiorari, the time is computed in the same way. This is described in Chapter V at pp. 140-4, supra. The date from which the period begins to run is the same as in certiorari cases. See pp. 140-2, supra. Whether the judgment or order below from which the time is computed is a docket entry by the clerk or a formal order signed by the judge varies with the local practice. United States v. Hark, 320 U. S. 531, 534, quoted at p. 141, supra; see also Puget Sound P. & L. Co. v. King County, 264 U. S. 22, 23-24 (date of judgment, not opinion, decisive).

Date constituting taking of appeal. The act which stops the running of the time is entirely different in appeal cases, however. As will appear (pp. 206-8, infra), a party wishing to take an appeal must file, among other papers, a petition for allowance of the appeal with a judge of the lower court or a Justice of the Supreme Court. See Rule 36. The presentation of the petition or application for allowance of the appeal (together with the other papers required by the Rules) to the judge or Justice who allows it constitutes the taking of the appeal. A recent amendment to Rule 36 was designed to make this clear; it states that:

"An appeal will be out of time unless within the period fixed by statute, application for allowance is presented to the judge or justice who allows it. A prior timely application to another judge or justice does not extend the statutory period. See Matton Steamboat Co. v. Murphy, 319 U. S. 412."

See also Cole v. Violette, 319 U. S. 581. This means that if counsel has any reason to feel that the chief judge of the state court from which he is appealing, or the lower court judge in a case coming from a federal court, will not allow the appeal, he should give himself sufficient time to present his petition for appeal