Second Appeal Nullity of the challenge for filing with a court other than the court which delivered the judgment after reclassification of the challenge. Framing of the grounds of second appeal

JURISPRUDENȚĂ COMENTATĂ ŞI ADNOTATĂ

Abstract

The means of challenge indicated by the merits court (the appeal) was correctly lodged with the M. Court, subsequently being reclassified by the court of judicial review as a second appeal, subject to Article 457(4) of the Civil Procedure Code. The appellate court granted a time limit for the filing of the second appeal, without it being necessary to file it with the merits court, in order for the latter to submit it to the higher court and give rise to possible dysfunctions in the registration and assignment of the appeal.

The failure of the merits court to rule on a plea relating to the exercise of the action does not fall within the grounds of appeal provided for in Article 488(1)(8) of the Civil Procedure Code. This plea could be covered by the provisions of Article 488(1)(5) of the Code of Civil Procedure, in that the merits court did not comply with the procedural provisions of Article 248(1) of the Code of Civil Procedure concerning the priority of the resolution of exceptions.

On the other hand, the erroneous assessment of the fulfilment of the contractual conditions, resulting from the interpretation of the evidence and the contractual clauses, does not constitute a criticism which can be included in the ground of appeal based on Article 488(1)(8) of the Civil Procedure Code.