Our courts may be divided into those courts which take original jurisdiction for the trial of cases and those courts to which a defeated party in the original court may take the cause for purposes of review. The reviewing court does not retry the cause, but merely reviews the record.
Courts in which cases are begun and in which they are tried are known as courts of original jurisdiction. After the trial has been had and the judgment rendered, the party who has been defeated may feel that the law has been misinterpreted or misapplied and in that case he may take the cause to a higher court by way of appeal or similar procedure. The higher court has been constituted as a court of review, and serves as a check upon the lower court, for it is not likely that both courts will make the same error. This higher court does not retry the cause; it hears no evidence; it merely passes upon the record that is brought before it, to consider whether in the decision of the court below there was error which wrought an injustice or that may have done so. If convinced of such error, it will reverse the judgment below, and if justice requires will send the case back for a new trial. It is in these courts of review that the opinions are rendered that are published in the judicial reports. It is true that we have some sets of reports of opinions rendered in the lower courts, but this is not now usual or practicable. It is of course only a small percentage of litigated cases that come before courts of review. A defeated party only increases his expenses and consumes his time by an appeal unless there is hope of reversal. And the court above will not interfere with the function of the court below by disturbing findings of pure fact unless clearly against the weight of the evidence. In other words, suppose, plaintiff testifies one way and defendant to the contrary, and the judge or jury below (according to whether there is a jury trial or not) believes the plaintiff, and judgment is accordingly so rendered. The court above would not disturb this finding of fact even if had such higher court been sitting as the trial court, it would have believed the defendant, but will only consider whether improper evidence was admitted, proper evidence excluded, erroneous instructions given to the jury, or any other error committed by which the defendant has been denied a fair trial according to law.
Below is given in a very general way a view of the progress of a civil case through the law courts.
(a) Service on defendant.
It is essential that the defendant be brought into court to answer to plaintiff's claim. He may voluntarily file his appearance, which brings him before the court without further action; but unless it is a friendly suit ordinarily he must be summoned in. A process therefore issues at plaintiff's request known as a summons, which is served by the sheriff (in United States Courts he is called the Marshal and in some courts he is called the Bailiff), notifying the defendant to appear. This must be served upon the defendant personally in ordinary law cases, by reading it to him and leaving a copy with him. In some cases involving property within the jurisdiction of the court, service may be had by publication if defendant cannot be served personally. Unless there is an appearance, or the service that the law requires, the court is without jurisdiction to hear the cause, and any proceedings thereafter are void.
(b) The pleadings.
1. Plaintiff's statement. The plaintiff must set forth in writing the general facts upon which he bases his claim. At common law this is called a declaration, and there were a great many technical rules that had to be observed in drafting it. Under reformed procedure a simplification and greater liberality has been attempted, and the statement is now frequently called a Statement of Claim. (In equity the statement of the case is called a Bill of Complaint.)
2. Defendant's statement. The defendant, being properly summoned in, must answer, within the time prescribed by the rules, and his pleading is called in common law pleading a Plea (in some states, an answer). If he is convinced that plaintiff's statement is insufficient as a statement of a case, he may demur, that is, allege that the statement, taken in its most favorable aspect, does not make out a case. The court will pass upon this and either overrule it and order defendant to answer, or sustain it, and allow plaintiff to amend, unless it appears his case is such that amendment cannot cure it. In the same way plaintiff may demur to the defense.
The defense under reformed procedure has likewise been simplified.
3. Plaintiff's reply. Plaintiff may reply to the plea if it calls for reply. This is called the Replication in common law pleading. If no reply is necessary, plaintiff merely joins issue; at common law, by filing a similiter.
(c) The trial.
The case being put at issue, now proceeds to trial. In courts of law either side is entitled to a jury trial (this is not true in equity cases). Plaintiff puts in his evidence to support his declaration or statement of claim. Defendant puts in his evidence sustaining his defense. Questions of the law, the court decides. Questions of fact are decided by the jury under the instructions of the court as to the law governing the facts. If both sides waive a jury, the court acts also as arbiter of the facts.
The jury's decision is known as a verdict.
The decision of the court where there is no jury is called a finding.
The formal pronouncement by the judge upon the verdict or finding is called a judgment.
The defeated party may appeal, as we have discussed in another connection.