# State v. Brown > Supreme Court of Vermont · May 3, 1960 · 121 Vt. 459 URL: https://www.frixlaw.com/law-library/cases/9753900 ## Case - **Full name:** State of Vermont v. Frank Brown - **Court:** Supreme Court of Vermont - **Decided:** May 3, 1960 - **Citations:** 121 Vt. 459; 160 A.2d 879; 1960 Vt. LEXIS 144 - **Precedential status:** Published - **Opinion:** Dissent by Holden - **Judges:** Hulburd, Holden, Sliangraw, Barney, Smith - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753900 ## Opinion text Holden, J. (dissenting). I am unable to concur in the dismissal of this appeal. It is my view that jurisdiction was transferred to the Supreme Court before time ran out. The function of notice of appeal is to inform the parties and the courts affected by the transfer of the cause that the controversy has not ended so that they may respond accordingly. Appeal of Maurice, 117 Vt. 264, 269, 90 A.2d 440 . The form of the notice is not essential to jurisdiction, only its timing is vital. The right and power of appellate review should not be withheld on a procedural deformity, or by a narrowed interpretation of the language of the enactment. Statutes giving and regulating the right of appeal are remedial. They are entitled to liberal and objective construction to further, rather than restrict, the right of review. In re Estate of Pringle, 119 Vt. 8, 9 , 117 A.2d 379 ; Appeal of Maurice, supra, 117 Vt. at 268, 90 A.2d at 443 ; In re Walker Trust Estate, 112 Vt. 148, 151 , 22 A.2d 183 . *467 Rule 73 of the Federal Rules of Civil Procedure is the root and stock of the method of appeal, civil and criminal, prescribed in 12 V. S. A. §§2382 and 2383. In common with its federal antecedent, our statutory rules abolish bills of exception and furnish a uniform method of appeal. Its basic requirements are lifted verbatim from Rule 73. There are but two significant variations. One requires that notice of appeal be given to the court to which the appeal is taken; the other provides that mailing to the persons named is equivalent to filing. Our adaption adds no restriction as to the form of notice. And it does not refute the federal adjudications concerning substantial compliance. It is the settled doctrine of statutory interpretation that when a statute is adopted in this state from another jurisdiction or country, the judicial decisions construing the forerunner to our enactment must be given effect. We take it that the language of our statute is used in the sense given to it by the prior adjudications of the foreign source', unless some other meaning is provided in the derivative enactment. Giguere v. E. B. & A. C. Whiting Co., 107 Vt. 151, 157 , 177 A. 313 , 98 A. L. R. 196; In re Martin’s Estate, 96 Vt. 455, 457 , 120 A. 862 ; Bousquet v. Howe Scale Co., 96 Vt. 364, 371 , 120 A. 171 ; Warner v. Warner’s Estate, 37 Vt. 356, 360 ; Adams v. Field, 21 Vt. 256, 266 . So it is that the construction given rule 73 by the federal adjudications, in effect, were adopted with 12 V. S. A. §2382. In re Martin’s Estate, supra, 96 Vt. at 467, 120 A. at 862. At the time the legislature sought to reform our appellate procedure by No. 261 of the Acts of 1959, including 12 V. S. A. §§2382 and 2383, the federal decisions, construing the Federal Rules of Civil Procedure, had long settled the question that now confronts us. A timely petition for leave to appeal in forma pauperis constitutes substantial compliance with the notice of appeal requirement under rule 73. Burdix v. United States, 9 Cir., 1956, 231 F.2d 893, 894 , cert. den. 351 U. S. 975 , 76 S. Ct. 1041 , 100 L.Ed. 1498 ; Des Isles v. Evans, 5 Cir., 1955, 225 F.2d 235, 236 ; Shannon v. United States, 1953, 93 U. S. App. D. C. 4, 206 F.2d 479, 481 ; Fishbaugh v. *468 Armour & Co., 4 Cir., 1950, 185 F.2d 541, 542 . See 3A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, §1553, p. 72. In the Burdix appeal, supra, the respondent was conyicted of a narcotics offense, in violation of the laws of the territory of Alaska. No notice of appeal was filed according to the federal rules, but the respondent presented timely and contemporaneous applications to the District Court and to the Circuit Court of Appeals for leave to appeal in forma pauperis. Both applications were denied. The Government moved to dismiss the appeal, and urged the appellate court refuse to consider the cause on the merits for the reason that no notice of appeal had been filed as required by the federal rules. The appellate court denied the motion to dismiss, considered the appeal and went on to affirm the conviction. In so doing, it held there was compliance, in substance, if not in form, with the notice requirement of rule 73. We have uncovered no conflict ip. the authority of this decision nor in the federal precedents upon which it is founded. On the day judgment was entered, the respondent requested leave of the Supreme Court to appeal his conviction as an indigent appellant. His request was granted prior to December 16, 1959. In so doing, we performed a juridical act, recognizing the transfer of jurisdiction to this Court, all within the appeal time prescribed. On December 28, 1959, well within the jurisdictional time limit, his assigned counsel took a further step in the appellate process. He ordered the transcript of the proceeding below, required by Rule 4A, Rules of Practice in the Supreme Court and Rule 31 (5), Rules of Practice in County Court. In this communication, counsel notified the Windham County Clerk, the clerk of the trial and appellate courts, that the respondent’s request for assignment of counsel to "perfect his appeal” and his need for a transcript at state expense had been granted by the Supreme Court. This notice became filed within the meaning of 12 V. S. A. §2383 when mailed to the clerk. See Abbadessa v. Tegu, 121 Vt. 496 ,498 160 A.2d 876 , decided at the current term. The contents of this communication to the clerk of the trial court, confirming the fact that this *469 Court had granted the respondent’s petition to perfect his appeal as an indigent appellant, should constitute adequate notice of appeal within the meaning and purpose of the new enactment. This appeal and the federal cases which support it are clearly distinguished from United States v. Robinson, 1960, 361 U. S. 220 , 80 S. Ct. 282 , 4 L. Ed. 2d 259 , cited by the majority. There no action was taken in the period allowed for notice of appeal. The conviction was permitted to lie dormant for eleven days beyond the appeal period. The power of the courts was extinguished by the expiration of the appeal time, without any action on the part of the appellant to signify his intention to appeal. The rule is necessary to fix a terminal point where it can be said the litigation has ended. To my mind, this appeal has a different bearing. The conviction of the respondent has not been at rest. The appellate process was set in motion on the day the judgment was entered. The essential fact that an appeal had been undertaken was brought home to each court concerned and to the prevailing party on the trial below, — all within the time prescribed. The dismissal of this appeal on a precise refinement of the new enactment will obstruct the operation of the judicial process. I view this result as counter to the purpose of the recent statutory rules of procedure, for they were designed to remove old impediments to appellate review. It is on these considerations that I believe that the Court’s power to deal with this proceeding has not been concluded. We should proceed to the merits of the appeal. Mr. Justice Barney joins in this opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753900. Public record. Not legal advice.