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Justinian I · The Digest of Justinian §49.1.3.pr-49.1.3.3

Defective Naming in Appeals and New Grounds

Passage 8467 of 9271 · Latin

Summary

Discusses the procedural validity of appeals when the names of adversaries or co-litigants are partially omitted in the petition, and confirms that once an appeal is initiated, the appellant is free to allege other grounds of appeal during the proceedings.

[ULPIANUS libro primo de appellationibus. ] §49.1.3.prScio quaesitum, si quis non addiderit in libellis, contra quem aduersarium appellet, an praescriptioni subiciatur: et puto nihil oportere praescribi.
[ULPIAN, from the first book on appeals.] I know that the question has been asked whether, if anyone does not add in the petition of appeal against which adversary he is appealing, he is subject to a demurrer; and I think that nothing should be barred by demurrer.
§49.1.3.1Sed illud cecidit in quaestionem, si plures habuerit aduersarios et quorundam nomina libellis sint complexa, quorundam non, an aeque praescribi ei possit ab his, quorum nomina comprehensa non sunt, quasi aduersus ipsos adquieuerit sententiae.
But this has become a question: if he has several adversaries, and the names of some are included in the petition of appeal, while those of others are not, whether a demurrer can equally be raised against him by those whose names are not included, as if he had acquiesced in the judgment against them.
et cum una causa sit, arbitror non esse praescribendum.
And since there is one single cause, I judge that no demurrer should be allowed.
§49.1.3.2Certe si plures hi sunt, aduersus quos pronuntiatur, et quorundam nomina in libellis sint comprehensa, quorundam non, hi soli appellasse uidebuntur, quorum nomina libellis sunt comprehensa.
Certainly, if there are several persons against whom judgment is pronounced, and the names of some are included in the petition of appeal, while those of others are not, only those whose names are included in the petition will be deemed to have appealed.
§49.1.3.3Quid ergo, si causam appellandi certam dixerit, an liceat ei discedere ab hac et aliam causam allegare? an uero quasi forma quadam obstrictus sit? puto tamen, cum semel prouocauerit, esse ei facultatem in agendo etiam aliam causam prouocationis reddere persequique prouocationem suam quibuscumque modis potuerit.
What then, if he has stated a specific ground of appeal, is he permitted to depart from this and allege another ground? Or is he, as it were, bound by some formal restriction? However, I think that once he has appealed, he has the capacity in the proceedings to present also another ground of appeal and to pursue his appeal by whatever means he can.

Notes

  1. §49.1.3.prpraescriptioni subiciatur — In classical Roman law, praescriptio refers to a procedural objection or demurrer (such as a lapse of time or procedural defect). Here, it questions whether a procedural error—failing to name the adversary in the petition—renders the appeal subject to dismissal by such an objection.
  2. §49.1.3.1quasi aduersus ipsos adquieuerit sententiae — The conjunction quasi is followed by the subjunctive (here, the perfect adquieuerit) to express a hypothetical comparison ('as if'). The verb adquiescere (to acquiesce, accept) governs the dative case sententiae (judgment), referring to the legal fiction that the appellant has accepted the ruling concerning those not named in the appeal.
  3. §49.1.3.2aduersus quos pronuntiatur — The relative clause refers to those against whom judgment is pronounced (in the passive pronuntiatur), denoting the co-litigants on the appellant's side, unlike the aduersarios (the adversaries, i.e., respondents) in the previous section §49.1.3.1. It establishes that when multiple co-litigants are affected, only those whose names are explicitly included in the petition are deemed to have appealed.
  4. §49.1.3.3esse ei facultatem ... reddere persequique — This is an accusative-and-infinitival construction governed by puto, with facultatem serving as the subject accusative of esse. The noun facultatem (capacity, power), referring to the dative of possessor ei, is further qualified by the two infinitives reddere (to present) and persequi (to pursue).

Cite this passage

Justinian I, The Digest of Justinian §49.1.3.pr-49.1.3.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.1.3.pr-49.1.3.3

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