Civil procedure law 2 lecture five

1. CIVIL PROCEDURE LAW II
LECTURE FIVE
DR. HASSAN MOHAMED ALI (WARIIRI)

2. • Once made the reserve ,the appeal should be proposed
together to that against the sentence that define the
judgment or with that which come proposed , from the
same or from other part ,against to subsequent
sentence that not defines the judgment (art. 340 cpc
),again, if the process is extinguished in first grade ,the
appeal should propose it against the said sentence with
in the terms of which to the art(215 cpc) if the sentence
is notified ,and of which to the art. 95 cpc_327 if it is not :

3. • those terms run from the day in which become
irrevocable the ordinance or pass in adjudicated the
sentence that pronounce the extinction of the
process(art129 cpc. of the art ),which means from the
moment in which the sentence acquire efficacy of
definitive sentence .
• The reserve of the appeal can be done:
a. To the audience of the judge, with oral declaration to
insert in verbal or with written declaration on separate
paper to attach it to the verbal (and of Cause in the
verbal gives act of the production of the written
declaration , of that renders it unnecessary);

4. b. With act notified to the attorneys of the parts
constituted, to norm of the art 170 (in the elected
domicile or in the residence declared ) or personally to
the contumacy part (art129 disp. of act ).

5. • Effects of the appeal-it is to say that the appeal has two
effects
a. Suspensive effect. it consists in the suspension of the
execution of the sentence during the term to appeal and
during the entire judgment of the appeal .the principle is
expressed clearly for the case of appeal already
proposed art.228c.p.c” the execution of the sentence ---
remain suspended if is proposed appeal” not for the
pendency of the term : how ever even in this case the
general principle is deduced from the expressions of the
art.282(the appealable sentence can be provisionally
executive).

6. • The suspension of the execution has place however for
the only fact of the pendency of the term and the appeal
intervened not there for as in other means of appeal ,in
which the execution of the sentence can be suspended
for the possibility of serious and irreparable
damage(art.228cpc ).
• But is possible ,as has been seen ,the conception of the
provisional execution ,conception that can happen also
subsequently to the pronounce of the sentence in appeal
grade (art__283):

7.  the conception happened in first grade can be revocated,
also it, in place of appeal not only the execution of the
sentence is suspended ,but remain also suspended the
efficacy of adjudicated matter ,since for the art.337cpv, if
the authority of a sentence is invoked in a different
process this can be suspended if that sentence is
appealed: that means for example that if A obtain the
resolution of real state contract with sentence of first grade,
and this is appealed ,the subsequent judgment instituted to
nullity the mortgage allowed from the buyer is suspended
till is not defined the first.

8. b. Devolutive effect.it consists in the devolution to
the cognition of the higher judge of all entire case
from the lower judge. As many time is said the
appeal judge not re-exam the sentence of the
proceeding judge through the denounced errors,
but performs a new judgment, that will bring to a
new sentence that substitute the preceding.
Under this aspect the doctrine use the term of
beneficium commune, intending that once
appealed it from apart, and the judgment is worth
also for the part, being also in the limits of what
that is appealed.

9. • Inforce of the devolutive effect “the requests and the
exceptions not excepted in the sentence of first grade ,
that are not expressly repurposed in appeal are intended
renounced” it seemed therefore in a first moment that the
devolutive effect has been directly abolished ,while some
authors retained that it would exist even with some limits.
•
•

10. • In the reality a devolutive effect, though limited, always
exist. and in fact above all the art.226 c.p.c ,cannot else
regard the only appealed who has been defendant in the
process of first grade ;if the appealed is the plaintiff , to
propose of the true and proper requests ,should do it
through incidental appeal ,as of the rest was admitted in
the code .from the other side , the exceptions of the
appealed (already defendant )of which has been accepted
in the sentence of first grade , can be well brought again to
the cognition of the judge without any activity from the
side of the interested.
•

11. The question hence arise limit to exceptions of the appealed
not accepted in the sentence .and only for this that the
devolutive effect is excluded if there is not request of the
appealed and is here that gets application the art.226 c.p.c in
conclusion a devolutive effect is always there and is restricted
to all the questions(of fact and of law)already accepted in the
sentence ,in the sentence that the appealed ,through
remaining in active ,can obtain victory in appeal for the only
reasons already accepted in the sentence of first grade .

12. • Intervention in appeal—the problem of the intervention
in appeal born from the harmonization of two opposite
principles: the principle of the economy of the process,
that will consent to thirds to intervene in the process
without limitation of density, where are avoided
subsequently further judgment, and the principle of double
grade, in force of which should not permit it to a third the
loss of grade of jurisdiction.

13. • The legislator for that, following the old code, admits to
the art. 225c.p.c the intervention of the only thirds that
may propose opposition to norm of the art.234 c,p.c this
recall to the art 234c.p.c should not be retained that the
intervention in appeal consists in an opposition of third
anticipated should be retained instead that the legitimacy
to the intervention in appeal awaits only to those thirds
that can do opposition.

14. • But the first problem that arises is however that of if the
art.234 c.p.c is referred to the only voluntary intervention or
also to the forced intervention. But the doctrine denies ,and
exactly ,that can be called in case a third in grade of appeal ,
since would loss it a grade of jurisdiction :instead ,given the
conception of the forced intervention (jussu judicis) which is
accepted from us, like report of controversy, there is no
reason to exclude that form of calling, but always giving
power to the third to intervene (and propose request)or
request the extrusion to what concern to the voluntary
intervention, is clear that the proper field of this will be the
principle intervention and some time can also be the
intervention litisconsorce.

15. • For the adhesive intervention the question is complicated since
the thirds would be legitimated to an intervention of this type
when the sentence is effected of fraud or collusion to their
damage ;but since ,given the diction of the art.225 c.p,c the
sentence productive of harmful effects can be either the
sentence of first grade as that issued , the intervention of third
of this type can be only there when the sentence already
pronounced has been the effect of fraud or collusion to their
damage .

16. • Consequently, only the third that could do revocable
opposition art 234 c.p.c to the sentence of first grade can
do adhesive intervention, not because they propose a
revocation in appeal, but since their legitimacy is given
from the said quality.
• Instead is to retain inadmissible in appeal an adhesive
intervention of persons that have not legitimacy to propose
opposition of third, as some authors retain, since the
expression of the law exclude any other form of
participation of third.
• For the above reasons is to exclude in appeal the
intervention of creditor provided with documents or
mortgages out of the cases of fraud or of collusion.

17. POWERS OF THE PARTS AND RELATIVE
LIMITATION
• Given the character of new judgment that has the
appeal process, the rule should be that not only the
sphere of it is that preceding, but that the powers of the
judge, remain as such were in first grade: the legislator
perhaps has excessively marked this character of
remaking of the first judgment, preventing almost totally
that the judge of appeal could use of means already
precluded to the preceding judge.

18. • The reform of 14 July 1950 has instead intended bring
disposition, in the sense that, remain steady the sphere
of first judgment.
• The art. 235 , so reformed regulate however the
requests, the exceptions and the new proves.
• New requests. The appeal judgment is a process of
second grade, therefore no new request will be
admitted, since, if will be it, it would be proposed for the
first time in appeal and would loose a grade of
jurisdiction. For that the art. 235 c.p.c disposes that the
new requests cannot be proposed, and, in any case,
should be rejected even as office.

19. • Exceptionally, for the principle of the economy of the
process, can be proposed some requests that, being new,
should be considered as implicitly already proposed in
first grade and accessories to the principle request: is
permitted therefore that can be asked the interests, the
fruits and the accessories matured after the appealed
sentence, never the less the payment of the damages
suffered after the same sentence (art. 235 c.p.c). Those
requests are consented since considered accessories of
the principle request.

20. END