question: when an appeal is perfected, but a statute says that the trial court retains jurisdiction, where does jurisdiction lie?
How do you mean? Jurisdiction is cabined in subject matter.
typically the trial court is divested of jurisdiction after a final order is issued and an appeal is perfected. however, if there is a rule or statute which says that in certain circumstances a trial court retains jurisdiction after a final order -- but makes no mention of appeals -- does the the trial court truly retain jurisdiction or must the appellate court remand in order to return jurisdiction?
my argument is that rule or statute trumps perfection of appeal, but i want to hear what others think before i file for reconsideration.....
No. The trial court retains all sorts of jurisdiction by default. In some cases, appellate courts even have to issue stays on execution of judgment.
Edit: I posted this then saw Jules said exactly the same thing. We're so cute together.
yes it does retain jurisdiction after a final order is issued, thats not the problem, its that the appeal has been perfected....if the appellate court has authority to issue a stay, then it is exercising its jurisdictional power....my argument is that it *lost* that power when my motion was filed.
i have not been able to find much state case law which supports my position, unfortunately; but there isnt much on the other side either.