Appeal. Lack of jurisdiction of the appellate court to hear an appeal against the civil judgment ruling on the objection of lateness
JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ
Abstract
As regards the failure to provide the Court of Appeal with an appeal against the civil judgment ruling on the objection of lateness, the appellant's criticisms are well founded.
The provisions of Article 477 of the Code of Civil Procedure, which governs the devolutive effect of the appeal, clearly provide that the court of appeal shall review the merits within the limits expressly or implicitly set by the appellant, as well as with regard to solutions that are dependent on the part of the judgment that is under appeal.
However, the appellant has not challenged the civil judgment of 23 January 2020 containing the decision of the court of first instance on the objection of the lateness of the amendment of the statement of claim, nor has he made any specific criticism of the reasoning of the first court underlying the decision rejecting the objection, which means that the merits court was not legally empowered to review the way in which the objection was dealt with, in breach of the mandatory procedural rules of Art. 477 Code of Civil Procedure, which regulates the limits of the court's jurisdiction in the appeal, but also the power of res judicata acquired by the decision on the exception by not appealing under the law.
The second appeal is reasoned in accordance with the law only as regards the plea of infringement of res judicata. The defendant-appellant submits that, by admitting the claim in respect of an area of 442 square meters, the merits court infringed the authority of res judicata of a previous judgment by which the claim of the same claimant had already been admitted in respect of an area of 3,210 square meters, and in view of the existence of that judgment the court could not rule again on the same claim. These criticisms were also raised on appeal, but they were not considered further in the light of the decision to allow the plea of lateness.
As is clear from the supplement to the claim, which was admitted in its entirety by the court, the applicant sought a claim to 442 square meters over and above the area of 3,210 sq. m., for which it already had a judgment, claiming that the defendant occupies an area of 3,652 sq. m. The merits court ruled in this sense, admitting the claim for an area of 462 sqm. of top. (...) area adjoining, i.e. in continuation of the 3,210 sq.m. area. for which it already holds an enforceable title on the basis of Civil Judgment No (...)/2006 of the Court of (L).
Accordingly, there could be no infringement of the authority of res judicata of a previous judgment as long as the court of first instance allowed the claim in respect of a new area of land, distinct and different from that in respect of which the applicant's claim was allowed in an earlier dispute.
