Effect of Taking Appeal

The mere filing of an appeal does not vacate or nullify the judgment appealed from.  Courts have consistently held that the mere filing of an appeal from a decree dismissing a complaint seeking an injunction, in the absence of a stay of proceedings, will not disturb the operative effect of such a decree.  Also, “where the act sought to be restrained has been performed, the appellate courts will deny review on the ground of mootness.”[i]  Thus, the filing of a petition to review an order of a bankruptcy judge does not stay the effect or operation of the order unless a supersedeas bond is filed or the order itself provides for a stay [ii] However, if the appeal is for denovo review, it may operate to vacate or nullify the judgment appealed from.

An appeal is perfected upon the filing of a written notice of appeal and once a case has been appealed, the trial court loses jurisdiction except to take action in support of the appeal.

The effect of the appeal is that it transfers the jurisdiction of an issue from the lower court to an appellate court.  The trial court will no longer have jurisdiction or authority to vacate, amend, modify or reconsider its judgment.  However, a trial court’s jurisdiction is not removed simply by the fact that a notice of appeal has been filed.  A trial court is not divested of jurisdiction to issue further orders in the case relative to the order or judgment appealed from if such further orders are specifically authorized by statute or rule.[iii]

The lower court may retain jurisdiction to determine matters collateral or incidental to the judgment and not inconsistent with the appellate court’s jurisdiction.  For instance, an appeal may not affect the lower court’s ministerial functions and the court may exercise the ministerial function of entering final judgment where a partial summary judgment and order of dismissal have left no unresolved claims.[iv] A notice of appeal does not oust a trial court of its jurisdiction to consider a timely-filed post-judgment motion, irrespective of the sequence in which the notice of appeal and a post-trial motion are filed.[v]

Similarly, interlocutory appeals from rulings in the lower court do not divest the lower court of jurisdiction over the case.  In some situations, the lower court is permitted to act in aid of the appeal.

At times, notwithstanding the pendency of an appeal from its judgment, a trial court may be permitted by order of an appellate court to proceed with specifically stated matters like making a determination as to the amount of prejudgment interest due.[vi]

[i] Brill v. General Ind. Enterprises, 234 F.2d 465, 469 (3d Cir. 1956)

[ii] In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. Nev. 1977)

[iii] Odd Fellows Building & Investment Co. v. City of Englewood, 667 P.2d 1358 (Colo. 1983)

[iv] Lewis v. United States, 992 F.2d 767, 772 (8th Cir. 1993)

[v] Ex parte Andrews, 520 So. 2d 507 (Ala. 1987)

[vi] McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992)


Inside Effect of Taking Appeal