Page:Catholic Encyclopedia, volume 1.djvu/728

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654

APPEALS


654


APPEALS


even the suspensive effect is forbidden, where, in matters referred to in this constitution, the preced- ing legislation allowed it. Thus it has been au- thoritatively declared that if a bishop, whetlier in performing his diocesan visitation or in taking me;isures for correcting morals at any other time, proceeds against a cleric judicially, the appeals from sucli judicial acts have a suspensive effect [Decrees of Clement VIII, 16 October, 1600, n. x-iii; Sacred ("ongreg. of the Council, reported by Pallottini (Col- lect io Decretonira S. C. C. vol. LI, Appellatio, § I, im. OS sq.) ]. Besides these universal laws, there may be particular enactments forbidding, with the sanction of the Holy See, suspensive appeals (Third Plenarj' Council of Baltimore, n. 286).

4. The Appellate Judge. (1) The appellate judge must belong to a higher court than that of the judge appellee. Hence no appeal is possible from the pope or an oecumenical council. From the Roman Congregations appeals properly so called are not admitted. Again, one cannot appeal to a bishop from his vicar-general acting as ordinary, because when acting as such the vicar-general is an official not judicially distinct from the bishop; nor can one appeal to a metropolitan, either from bishops exempt from metropolitan jurisdiction or from bishops act- ing in virtue of powers conferred upon them only as delegates of the Apostolic See. (2) Moreovei', an appeal has to be taken to the judge who is imme- diately superior to the judge appellee, except when this immediate superior is unable, physically or morally, to receive the appeal, and also when the appellant wishes to appeal to the pope's repre- sentative (a legate, or a nuncio, or a delegate apostolic having the power of a legate) or directly to the Holy See (that is, to the Sacred Congreg. of the Propaganda, from missionary countries; to the Sacred Congreg. of Extraordinary Ecclesiastical Af- fairs from South America and countries subject to this Congregation; and, from any other country, to the Congregation competent in the matter in ques- tion). However, the Holy See does not always admit appeals in cases not yet tried on first appeal before the metropolitan.

According to this rule: (a) From a bishop and, during the vacancy of a see, from the vicar-capitular or administrator the appeal has to be made to the metropolitan, (b) From the sentence passed by a metropolitan in second instance the appeal has to be made either to the Holy See or to its representative as alx)ve. The same holds good for an appeal taken from the sentence pronounced by a metropolitan in first instance, unless, by privilege, appeal is allowed to the nearest metropolitan (Third Plen. Council of Baltimore, n. 316). In the case of a metropolitan subject to a patriarch possessing patriarchal rights, the court of appeal from the metropolitan will be the court of the patriarch, (c) From a legate or a papal representative having the power of a legate, no appeal lies except to the Holy See. (d) In the case of a sentence passed by a judge acting in virtue of delegated jurisdiction, the appeal has to be made to the judge by whom the jurisdiction was dele- gated.

•"). The Appeal itself. — A. Time. For entering an appeal the peremptorj term of ten days is allowed, after which term the appeal is not admitted. In judicial cases the ten days are counted from the time wluMi the sentence was pronounced, if the party was there present, or from the moment when the party knew of it, if the sentence was passed in his al)sence. Tlie liuslr. Sacra and Cum mat/nopere coimt the ten d.iys from the moment when an official written notification of the sentence was given to the party, la cxirajulicial cases the ten days begin from the time whi'U the appellant becomes aware of the wrong done lo him.— B. .Manner. (1) The ap|>cal must


te made in writing except when a judicial appeal is entered in court immediately after the sentence has been pronounced, in whit^h case it may be made by word of mouth. (2) When the appeal is in writing, it is necessary to state who the appellant is, from what sentence or order he appeals, and against whom the appeal is directed, iloreover, it is customary to insert the names of the judge ap- pellee and of the appellate judge. When the appeal is made by word of mouth it is sufficient to express clearly the act of appealing to a higher court by saying, "I appeal ", or using similar words. (3) The reason of the complaint ought to be stated in af)- peals from a purely interlocutory sentence or from extrajudicial acts; out it is not necessarj' to express it in judicial appeals from final or quasi-final sen- tences; the reason is that in the former case the judge appellee may himself at once modify or set aside his former decision or order, wh.ereas in the latter case he is not allowed to change his sentence. (4) The appeal ougtit to be interposed in the presence of the judge appellee, unle-ss the appellant is pre- vented by fear or some other obstacle fr^m having access to him, in which case the appeal ought to be interposed in presence of the appellate judge; and should this also be difficult, the appellant should go before some trustworthy persons, or before a notarj' and two witnesses, and have a document drawn up with a statement that the appellant has declared his will in their presence on account of difficulties that prevented him from going before either of the two judges. In either case the judge appellee should be notified of the appeal. (5) The judge appellee must on the appellant's request furnish him with letters called Apostoli, in which he notifies the appellate judge that the appeal has been duly en- tered, and with a copy of all the acts of the case, to be forwarded by the appellant to the appellate court. The appellant should ask for these lettei's within thirty days (imless the term was shortened by the judge appellee) from the time he became aware of the sentence or grievance, and if he fails to do this the law presumes that he has renounced his right to appeal. The appellant having received these letters must gi\'e them to the appellate judge within the time established by the judge appellee. This term also is peremptory, so that if the appel- lant fails to give them he forfeits his right as before. According to the Instr. Sacra, art. 39, and Cum magn., art. 38, as soon as the appeal has been en- tered, the judge appellee has to forward the entire original acts of the case to the appellate court. In these instructions no mention is made of the A po.st<ili . or letters containing the certificate of appeal. Hence the appellant is not required to ask for them, and corLsequently there can be no question of the per- emptory term of thirty days a\ailable for demand- ing them, nor of the next peremptory- term for presenting them. On the other hand, in keeping with the same instructions, the appellate judge, having received the acts and taken cognizance of the appeal, has to notify the appellant that within twenty days (according to the In.<:tr. Sacra, art. 40). or thirty days (according to the Instr. C\im magn.. art. 39) he mast appoint his counsel, to be approved by the same appeil.'ite judge; and this term is per- emptory, so that it the appellant does not make the said appointment in time the appellate judge will formally jironouncc the right of appeal to be for- feited. — C. Judgment on the admusailyility oj the appeal. The appellate judge, on receiving the said documents, must, before trying the case, examine whether the appeal is legitimate; hence he sho\ild make sure: (a) that the case is not one of tho.se in which appeal is not permitted; (b) that the ap pellant is not one of those |x?rsons excluded by the law; (c) that he has apjjealed witliin the prescribed