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Appeal and Enforcement

Every judicial system provides for review by an appellate court of the decisions of the trial court. When the system has two levels of appellate courts, appeal in  most cases should initially be made to one of the intermediate courts, review at the highest level is only at the discretion of that court except in certain classes of cases.

In making the decision to appeal, a party may take into consideration the following points: First, in general an appeal may be taken only after final judgment. Though in the course of trial the judge may make all kinds of errors, no appeal may be taken until the final judgment has been rendered, except in a limited number of situations. A second thing to remember is that an appellate court is suppposed to correct errors, not to render what it thinks is a more just result in the particular case. If the trial judge made a mistake of law and it seems that the mistake affected the outcome, the appellate court will reverse the judgment and order a new trial. If, however, the trial judge has not made any mistakes, but the result does not seem just, the trial judge has not do anything about it. A third important point is that appellate courts in general do not review lower court decisions on matters of fact; review is ordinarily limited to questions of law, unless the appellate court thinks there is no substantial evidence to support the determination in question. Lastly, the appellate court will not ordinarily consider objecions that were not first presented to the trial court and kept in the record. This means that a litigant must raise his objections at the first opportunity and is not permitted afterthoughts.

Most states provide that the appellant must, within specified times after judgment is entered, give notice of appeal to the trial court and opposing parties, file an appeal bond to guarantee to pay costs that may be charged against him on appeal, and file with the clerk of the appellate court a transcript. The transcript shall contain the record of the testimony, a copy of the judgment, decree or order appealed from, and other papers relevant to the appeal.

The paries present their contentions to the appellate court by written briefs and in addition, in most cases, by oral argument, the court prepares a written opinion stating the applicable law involved and giving the reasons for its decision. The court, by its decision, may affirm or reverse the court below, or may remand the case for a new trial. After this, the dissatisfied party may request a rehearing or a further review of the case.

After the appeal and whatever further proceedings that may take place, or, if no appeal is taken, when the time for appeal expires, the judgment is final. It cannot be challenged in another proceeding.

After judgment becomes final, if the losing party does not voluntarily comply with it, the judgment creditor will apply for a writ of execution. This writ directs the sheriff to seize the personal property of the judgment debtor and to sell enough thereof to satisfy the judgment and to cover the costs and expenses of the sale. If the proceeds from such sale do not produce sufficient funds to pay the judgment, the unpaid judgment creditor is entitled to have the real estate of the debtor sold at a judicial sale and to have the net proceeds of the sale applied on the judgment. He also has a judicial lien on any real property acquired by the debtor during the life of the judgment. This is much more common than you think, many of the houses for sale in Dayton recently have gone through this process after the mortgage crash.

An unpaid judgment creditor can also “garnish” the wages of the debtor or his bank account or any other obligations owing to the latter from a third party. In the process of garnishment, the person owing the money to the judgment debtor will be directed to pay the money into court rather than to the judgment debtor, and such money will be applied against the judgment debt.

A plainftiff who fears that the defendant will dispose of his property before the court is able to enter a final decision will use the method of attachment. By attachment, the plaintiff has the property of the defendant seized, pending the outcome of the lawsuit.

Execution, garnishment and attachment proceedings are governed by state statutes. These statutes exempt certain property from execution and garnishment and provide methods for defendant to set aside attachment.

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