Page:Catholic Encyclopedia, volume 17.djvu/66

 APPEALS 50 APPBOBATION

macious person who has not purged himself from otherwise; however, in a case of grave necessity

his contumacy; or from a judgment against one a provisional execution may be allowed, if an ade-

who has expressly renounced in writing his right quate bond is lodged in court as security against

of appeal. If a judge decides he is relatively com- loss in case the appeal is upheld. As soon as the

petent to hear a case there is no appeal allowed appeal has been brought before the higher tribunal,

against such a decision; though if he declares him- the lower coiut must supply a certified copy or the

self incompetent either of the parties may appeal original documents of the proceedings to the judge

if he believes himself wronged oy the decision. of appeal, who can deal only with the case exactly

Usually the judge of appeal or of second instance as it was presented to the lower court, though addi-

is the metropolitan or archbishop, yet if the latter tional proofs of the questions involved may be

has acted as trial judee, the judge of appeal will introduced.

be any bishop whom he has selected once for all When a sentence rendered is null and void the

for that purpose, with the approval of the Holy remedy is not an appeal, but a complaint of nullity.

See. If the archbishop has no suffragans or if .the The sentence is irremediably null if it was given

trial judge was a local ordinary immediatelv sub- by an absolutely incompetent judge or by a tribimal

ject to the Holy Sec, the appeal is to be made to a of judges lacking the canonical number; or if one

neighboring metropolitan, in the case of exempt of the party was incompetent to litigate; or if the

religious an appeal is made from a decision of the suit was conducted in the name of a party but with-

provincial to the general, or from the local abbot out his leave. Under these circumstances the

to the head of the monastic congregation. Appeals question of nullity may be raised as an exception

against episcopal decrees are to be taken to the (per tnodum exceptionia) at any time, or by lodging

various Roman Congregations, not to the Sacred a complaint withm thirty years with the judge who

Rota. rendered the decision. On the other hand the defect

An appeal may me made verbally before the in the sentence may be remediable; this happens judge in court, if the decision is given there pub- when the citation was illegal, or when no reasons licly, and in that case it must be immediately re- for the decision were given by the judge (excepting corded by the notary. In any other case it has in decisions of the Apostolic Signature), or where to be made in writing, except when the party can- the requisite signatures, dates, or name of place not write. An appeal must be made before the were omitted. In this case the complaint witn an judge appellee within ten days after notice of the appeal may be made within ten years, or the publication of the decision, and must be brought complaint alone within three months irom the time before the judge of appeal or appellate judge within of publication of the judgment; the application is a month, imless the judge appellee has granted an to be made to the judge who heard the case, but if extension. This is done by the appellant asking the applicant mistrusts him he can demand to be the appellate judge to amend the decision, at the heard by another judge of the same standing. If same time presenting a copy of the judgment and a definitive sentence does wrong to a third party, of the notice of appeal, which he shall have pre- he may intervene before its execution by a pro- viously shown to the judge appellee. If he cannot ceeding known as oppositio tertii, in which he either obtain a copy of the judgment, the time which petitions the adjudicating judge to revise his de- is allowed within which to appeal ceases to run; cision or appeals to a higher court, the appellate judge is then to be notified, and he If a question has become a res judicata, that is must compel the judge appellee to irive the copy definitively closed or settled, for instance when the as soon as possible. If one of the litigants dies or first decision has been upheld on appeal, or where changes his status or resigns from the office in virtue no appeal is allowed by law, or when the appeal of which he was acting, within the time for appeal- was not begun or prosecuted in time, an aggrieved ing, but before the appeal has been interposed, party may nave recourse to the extraordinary rem- those who are interested should be informed about edy known as restitutio in integrum (restoration of the judgment, and the time for appeal begins to run the party to his original condition), if the decision from the day on which they are so notified; if the was manifestl]^ unjust. A decision is not considered change happens after notice of appeal has been manifestly unjust, however, unless it is shown that given, the parties interested are similarly to be in- it was based on false documents, or was obtained formed, and from that moment the time for- con- by the fraud of one of the parties, or that the pro- tinuing the appeal begins to run. visions of the law were clearly disregarded, or that

An appeal made by the plaintiff may be utilized new documents have been discovered establishing by the defendant and vice versa. If one of the facts that clearly necessitate a reversal of the sen- litigants appeals against part of the judgment, his tence. The petition for a hearing is to be made to adversary may appeal against other parts of it, even the adjudicating judge, unless it is based on a claim though he had already lost his right to appeal by that the judge neglected the prescriptions of the lapse of time; and he can do this also with an un- law, in which case it is to be addressed to the court derstanding that he is to withdraw his appeal if his of appeal. A propos of res judicatae it must be opponent does likewise. If the appellant attacks only noted that the Question of a person's status, for ce'rtain parts of the judgment, he is considered as instance where the validity of a marriage is in- having acquiesced in the remainder, but if he speci- volved, is never a res judicata, yet if a decision has fies no particular part, 'he is deemed to have ap- been rendered and upheld on appeal no re-hearing pealed against the entire decision. If one of several is allowable, unless it is based on new and grave

Elaintiffs or defendants appeals, all are considered to arguments or documents, ave appealed, if what is sought, or if the decision affects them jointly; but if the judge of appeals Approbation (cf. C. E., I-656d).— Under the confirms the decision of the lower court, the actual Tridentine regime a minister of confession, besides appellant alone has to bear the costs of the appeal, sacerdotal orders, required jurisdiction and approba- There is never an appeal properly so-callea al- tion. Approbation was defined as a juridiciGd de- lowed on the question of costs, but an aggrieved cision of a prelate that a priest was competent to party may apply within ten days to the judge who hear confession. Without approbation, which could gave them, and he may re-open the question. All he granted only by a bishop or a person exercising appeals suspend judgments unless the law states episcopal jurisdiction, no one could hear the con-