Page:Catholic Encyclopedia, volume 1.djvu/729

This page needs to be proofread.




time; (d) that there arc sufficient grounds for tlie appeal. — D. Inhibilions. Once the appellate judge has ascertained that the ap|K'llaiit has legitimately appealed, and that the ap|je:il is not one of those that have only a devolutive ctTect, he has the riglit to send to the judge ap|x?llee letters called in- hibitory, forbidding him to take further action in the case. — K. AltcrUules. Finally, it is the duty of the appellate judge to reverse what are called attentates {aticntdla), if there are any; by which term is meant whatever (in the case of an appeal having a suspensive cITect) the judge appellee may have done preivulicial to the api)eal during the time when his jurisdiction was suspended. — F. Withdrawal of the appeal. Prior to the time when the api)ellate court begins to try the ease, the appellant is allowed by the law to withdraw his ai)peal, even if the ap- pellee does not con.sent. Once, however, the appellate court has begun to try the case, the appellant is no longer free to renounce his appeal luilcss the appellee agrees to it. — O. Juilgment of the case oil, appeal. The appellant having done what is required on his part for introducing his appeal, the appellate judge allows him a li.xed time for presenting whatever he wishes to allege in his own favour, and at the same time notifies the ap|x;llee of the admission of the appeal and of the term granted to the appellant. In this trial the law tioes not allow new actions, that is, claims which are dilTerent from the main point at issue in the first instance and which would rather constitute a new controversy not yet tried by the judge ap|iellee. In an apixiid from a final or quasi- final sentence the judge is allowed to admit new evitlence, whether to prove what was already alleged but not sufficiently proved, or to prove a new allega- tion, provided this has a close bearing on the main |M)int at issue in the first trial and is not equivalent to a new action; the same right should be granted to the appellee in his reply. In an appeal from a purely interlocutory sentence new evidence is not alloiied, and the court in forming its decision must confine itself to the evidence deduced from the acts of the first trial. The formalities to l)c ol),served in the trial of the case on ap[)eal do not differ from those of the first instance. The ought to be tried and finished within one year from the time when the appeal was interposed, or within two years where there is sufficient cause for delay. If the appellant through his own fault does not prosecute his appeal during this time he will !« considered as having abandoned his appeal. This time fixed by law cannot be shortened by the apiiellate court except for some rea.son of common good, nor can it be extended except with the consent of both parties. The sentence by which the second in- stance is ended contain a declaration as to the justice or injustice of the previous judgment, by which declaration that judgment is confirmed or reversed.

6. .Appeals to the Roman Congreijatinns. — In ap- |»als to the Roman Congregations, substantially the same rules are olxserved. Within the peremptory term of ten days the appellant must intor) his appeal lx>fore the judge appellee, who will inunodiatelv send the acts of the process to the ("<)ngreg;ition. liefore the case is discus.sed in the Congregation, a judge- referee (ordinarily one of the cardinals) is appointed, whose duty is to report the ca-se to the Congregation for decision. lie fixes the day when the Congrega- tion will consider and decide the case. Before this day comes, the judge-referee and the cardinals re- ceive a summarj- of the acts of the whole case to- gether with the written defences prepared l)y the lawyers or procurators of the parties. Those lawyers and procurators are also allowed to explain bv word of mouth their written information. .\t tlie a|>- pointed day the case is proposed to the Congrega-

tion, and decided by it, after the cardinals have heard the report of the judge-referee. The decision has the force of a judicial .sentence. Against it there is no true appeal; but the Cungregation grants another means of redress called bemficium nova: audientioe (the Ix'nefit of a new hearing). Should, however, the Congregation add to its decision the words et amplius (a meaning that the case should not be pre- sented again), it is more difhcult to obtain a new hearing, which is granted only for new and very strong reasons. Finally, when the time within which the petition for a new hearing must be presented has elapsed without the petition having been made, or when a new hearing is not granted, the Congregation, on request made by the parties, will forward to them a rescript containing an ofiicial communication of the sentence. Cases are sometimes tried in the Ro- man Curia in a simpler form (aconomica). This is done for the sjike of the parties, whose expenses are thas reduced, since in this kind of process they are not reijuired to have lawyers, but whatever can be alleged in support of their rights is brought to the notice of the cardinals in a report officially drawn up, and to this report, in more important eases, is added the opinion of two consultors of the Con- gregat ion.

7. Meatis of redress available where appeals are not admitted. — A. Querela tiullHatis (Complaint of mdlity). -Against a sentence which is invalid the legal remedy is not appeal, which is made only against an unjust sentence, but the complaint of nullity. This complaint of nullity differs from the apjMjal in the following points: (a) It can be pro- posed within thirty years, nay, indefinitely, if the sentence be such tliat its enforcement happens to be an occasion to sin (such as would be the sentence treating as valid a marriage contracted with an impediment which cannot be removed by the con- sent of the parties), (b) One is allowed to make this complaint to the same judge who pa.ssed the sentence, unless this judge has Ix^en delegated for a particular case, (c) It has no suspensive effect, unless the nullity is evident. B. lie.stilutio in in- tegrum (Restoration to the original condition). When one has failed to lodge an apj)eal within the time prescribed, and this has hapi)ened because it was imfx).ssil)le for him to act, the law grants what is called restitutio in integrum. This restilutio is, in general, that remedy by means of which one who has suffered damage, because prevented from acting, is reinstated by a judge in the condition in which he Wius before the damage took place. (See Com- mentators on the Decretals. Itook I, title 41.) C. Re- cursus (Recourse). In all cases when appeals are forbidden, one can make use of the remedy called recursus. which, strictly speaking, is an act by which one petitions the Holy See to grant him redress in a case in which the law does not recognize the right of appeal. This recourse differs from an apjieal in the following points: (a) it is an extraordinary remedy; (b) it can be granted only by the Holy See; (c) it has no suspensive effect.

B.\ART, Legal FormxUary (New York), nn. 442 sq.; Droi^te- Mks,smf.r, Canonical Procedure in tHsciplinary and Criminal Cases of Clerics {New York), nn. 105 sq.; Smith and Chf.etham (non-Catholic), A Dictionary of Christian Antiquities (Harl- foril, 1877). 8. V. Appeal: Smith, Elements of Ecclesiastical Laic (New York. 1893), 1, nn. 44i mi.; II, nn. 1207 sq.; Smith. The Sew Procedure (New York, 1888). nn. 427 sq.; Andre- Waoneh, Dictionnaire de droit canonique (Paris, 1901). s. v. Appeal; Bonx, De ludiciis Ecclesiasticis (Pari?. 1800). II. 24r): De Angei.I.s, Prtrtectiones Juris Canonici (Rome. 1877- 91). Hook II, tit. 28: Fekiiaris, Bibliolheca Canonica (Rome. 188.5-99), s. V. Appellatio: CloSAC, Compendium I uris Canonici (Quetiec. 1903), II. nn. 1013. !<q.; Leca, De Iiuliciis Eccles-

nslicts (Rome, 1890-1901). 1. nn. 014 sq.; Ojirrrl. Sunopsis ■ iri. Pontificii (Prato, 1904), I. " " Pierantoselli, Praxis Eon EccUsiastici (Rome, 18831. l.'iC:


Reiffenstuei., Jus Canonicum Universum (Pans. 1804-70), Book II, tit. 28.

Hector Papi.