Sua Sponte Consideration in Appellate Review

Fordham Law Review, Dec 1958

By Allan D. Vestal, Published on 01/01/58

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Sua Sponte Consideration in Appellate Review

Sua Sponte Consideration in Appellate Review Allan D. Vestal 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L. Rev. 477 (1958). Available at: http://ir.lawnet.fordham.edu/flr/vol27/iss4/1 - Article 1 ALLAN D. VESTAL* To say that appellate courts must decide between two constructions proffered by the parties . . . would be to render automatons of judges, forcing them merely to register their reactions to the arguments of counsel at the trial level.' An appellate court decides only the issues presented by the parties.2 These apparently inconsistent statements suggest a very challenging problem which faces appellate courts. With some frequency a reviewing court in considering a case will discover an unargued legal issue which the court feels is decisive of the case. The failure to argue the point to the appellate court may be a matter of either inadvertence or intention. The court must then decide, either consciously or unconsciously, whether it will be restricted to the issues posed by the litigants. The court must decide whether it will view the controversy in the terms and issues posed by counsel or whether it will independently analyze the case in terms and issues of its own making.3 * Professor of Law, State University of Iowa. 1. Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271, 274 (1955). 2. Hampton v. Superior Court, 38 Cal. 2d 652, 656, 242 P.2d 1, 3 (1952). "This Court will not perform the duties of counsel; it will not examine a record to see if it can find any errors upon which to reverse a judgment. If the appellant's counsel does not choose, in some form, to call the attention of the Court to the points, provisions of the statute, and the authorities upon which he relies, the judgment will be affirmed." Edmondson v. Alameda County, 24 Cal. 349-50 (1864). 3. This should be distinguished from the situation wherein a court as a matter of dicta articulates a principle of law not urged or argued by the litigants. See Dickinson v. Porter, 31 N.W.2d 110 (Iowa 1948), superseded by 240 Iowa 393, 35 N.W.2d 66 (1949); Larkin v. Tsavaris, 85 So.2d 731 (Fla. 1956); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956), dicta noted in 42 Iowa L. Rev. 450 (1957). To the litigants in the law suit, dicta is not vital. Courts, however, use dicta as a device to declare what the law is in a given field. Certainly the bench and bar of a given jurisdiction cannot safely disregard such statements. Best v. Yerkes, supra. Some judges apparently favor the use of dicta to spell out legal principles although a particular case does not call for it. See, e.g., Mr. justice Clark dissenting in Gold v. UnitedStates, 352 U.S. 985 (1957); but compare Nelson v. Estill, 175 Ga. 526, 543, 165 S.E. 820, 828 (1932); Lawlor v. National Screen Serv. Corp., 352 U.S. 992 (1957). The idea of a court sua sponte considering an issue is not a matter to be found only at the appellate level. In the trial of a law suit a court on its own motion will consider the question of jurisdiction of the subject matter. It has been held that the litigants cannot circumscribe the examination of the court in this area; the litigants cannot waive this issue. FACTS, LEGAL ISSUES, AND BASES OF DECISION An appellate court in hearing and deciding a case is concerned with the facts, the legal questions or issues arising from the factual situation, and the authorities or bases of decision. In getting the controversy into a posture suitable for adjudication by a court, the litigants will be interested primarily in the factual background of the legal questions.' Either by agreement or by trial, the facts will be established and the judgment of the trial court will be handed down. Then, if an appeal is taken, the litigants, in the construction of the record on appeal, have the right to establish the factual background against which the controversy will be viewed by the appellate court. It is generally assumed that the appellate court will accept the litigants' statement of the facts and that the appellate court will not independently investigate the matter to ascertain whether the facts are as stated or whether there are additional facts which would alter the outcome of the litigation. However, it would be a mistake to assume that the appellate court will never go beyond the facts related in the record.5 During the argument of a divorce case before the Iowa Supreme Court in the early part of January 1954, it was intimated that the parties had remarried in California. The court recessed the hearing on the case to get factual information about the current status of the parties. Fin (...truncated)


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Allan D. Vestal. Sua Sponte Consideration in Appellate Review, Fordham Law Review, 1958, Volume 27, Issue 4,