Quando appellandum sit et intra quae tempora
(When an Appeal Should be Taken, and Within What Time.)
1 Ulpianus libro primo de appellationibus. Si quidem in insulam deportandum adnotaverit praeses provinciae et imperatori scripserit, ut deportetur, videamus, quando sit provocandum, utrum cum imperator scripserit an cum ei scribitur? et putem tunc esse appellandum, cum recipi eum praeses iubet sententia prolata imperatori scribendum, ut deportetur. ceterum verendum est, ne sero sit, ut tunc provocetur, cum imperator insulam ei adsignaverit: comprobata enim sententia praesidis tunc solet insulam adsignare. rursus illud verendum est, si mendaciis apud principem oneravit eum, quem deportandum laborabat, intercludi illi viam provocandi. quid ergo est? recte dicetur humanitate suggerente, ut et hoc et illo tempore non frustra provocaretur, quia non adversus principem, sed adversus iudicis calliditatem provocavit. simili modo et in decurione erit probandum, quem punire sibi praeses permittere non debet, sed recipere eum in carcerem et principi scribere de poena eius. 1Si quis tutor datus fuerit vel testamento vel a quo alio, qui ius dandi habet, non oportet eum provocare (hoc enim divus Marcus effecit), sed intra tempora praestituta excusationem allegandam habet et, si fuerit repulsa, tunc demum appellare debebit: ceterum ante frustra appellatur. 2Alia causa est eorum, qui ad aliquod munus vel honorem vocantur, cum dicant se habere excusationem: nam non aliter allegare possunt causas immunitatis suae, quam si appellationem interposuerint. 3Solent plerumque praesides remittere ad ordinem nominatum ut Gaium Seium creent magistratum vel alius quis honor vel munus in eum conferatur. utrum igitur tunc appellandum est, cum ordo decretum interposuerit, an vero a remissione, quam praeses fecerit, appellatio sit interponenda? et magis est, ut tunc sit appellandum, cum ordo decreverit: magis enim consilium dedisse praeses videtur, quis sit creandus, quam ipse constituisse: denique ipse erit appellandus, non ab eo provocandum. 4Sed et si praeses in ordine fuerit (ut fieri adsolet), cum ab ordine crearetur quis, ipse erit provocandus, quasi ab ordine, non ab ipso fiat appellatio. 5Biduum vel triduum appellationis ex die sententiae latae computandum erit. quid ergo, si sententia fuerit sub condicione dicta? utrum ex die sententiae tempus computamus ad appellandum an vero ex die, quo condicio sententiae extitit? sane quidem non est sub condicione sententia dicenda: sed si fuerit dicta, quid fiet? et est utile statim tempora ad appellandum computari debere. 6Quod in sententiis praeceptum est, ut vel altera die vel tertia provocetur, hoc etiam in ceteris observandum, ex quibus sententia quidem non profertur, appellari tamen oportere et posse supra relatum est. 7Dies autem istos, quibus appellandum est, ad aliquid utiles esse oratio divi Marci voluit, si forte eius, a quo provocatur, copia non fuerit, ut ei libelli dentur: ait enim: ‘is dies servabitur, quo primo adeundi facultas erit’. quare si forte post sententiam statim dictam copiam sui non fecerit is qui pronuntiavit (ut fieri adsolet), dicendum est nihil nocere appellatori: nam ubi primum copiam eius habuerit, poterit provocare. ergo si statim se subduxit, similiter subveniendum est. 8Quid igitur, si condicio horae effecit, ut se reciperet? si forte dicta sit sententia iam suprema hora? utique non videbitur se subtraxisse. 9Adeundi autem facultatem semper accipimus, si in publico sui copiam fecit: ceterum si non fecit, an imputetur alicui, quod ad domum eius non venerit quodque in hortos non accesserit, et ulterius quod ad villam suburbanam? magisque est, ut non debeat imputari. quare si in publico eius adeundi facultas non fuit, melius dicetur facultatem non fuisse adeundi. 10Si quis ipsius quidem, a quo appellabit, adeundi facultatem non habuit, eius autem, quem appellabit, habeat copiam: videndum est, an ei praescribi possit, quod eum non adierit. et hoc iure utimur, ut, si alterutrius adeundi fuit copia, praescriptio locum habeat. 11In propria causa biduum accipitur. propriam causam ab aliena quemadmodum discernimus? et palam est eam esse propriam causam, cuius emolumentum vel damnum ad aliquem suo nomine pertinet. 12Quare procurator, nisi in suam rem datus est, tertium diem habebit: in suam autem rem datus magis est ut alteram diem observet. at si in partem proprio nomine, in partem pro alieno litigat, ambigi potest, utrum biduum an triduum observetur. et magis est, ut suo nomine biduum, alieno triduum observetur. 13Tutores, item defensores rerum publicarum et curatores adulescentium vel furiosi, tertium diem habere debent, idcirco quia alieno nomine appellant. ex hoc apparet tertio die provocandum defensori, si modo quasi defensor causam egit, non suo nomine, cum optentu alieni nominis suam causam agens tertio die appellare possit. 14Si quis suspectum tutorem faciens non optinuerit, appellare eum intra triduum debere Iulianus libro quadragensimo digestorum scripsit, profecto quasi pupilli defensorem. 15Si adversus absentem fuerit pronuntiatum, biduum vel triduum ex quo quis scit computandum est, non ex quo pronuntiatum est. quod autem dicitur absentem posse provocare ex quo scit, sic accipimus, si non in causa per procuratorem defensus est: nam si ille non provocavit, difficile est, ut hic audiatur.
1 Ulpianus, On Appeals, Book I. When the Governor of a province notifies someone that he shall be deported to an island, and writes to the Emperor in order that he may be deported, let us see when an appeal should be taken, whether at the time the Governor wrote to the Emperor, or when the latter wrote to him. I think that the appeal should be taken when the Governor orders the defendant to be taken into custody, and after he has rendered his decision that the Emperor shall be written to, in order that the defendant may be deported. It is, however, to be feared that it will be too late to appeal after the Emperor has assigned him an island, for the decision of the Governor having been confirmed, it is then customary to assign an island as the place of deportation. Again, it should be apprehended that if the Governor made false statements to the Emperor concerning the person whom he was attempting to have deported, the way of appeal will be closed to him. What then should be done? It can properly be decided in compliance with the suggestions of humanity that, in either case, an appeal will not be taken in vain, because the defendant does not appeal from the Emperor, but against the duplicity of the judge. This rule should also be adopted in the case of a decurion, whom the Governor ought not to permit himself to punish, but should confine in prison, and write to the Emperor with reference to his punishment. 1When anyone is appointed a guardian, either by will or by someone who has the right of appointment, it will not be necessary for him to appeal (as this rule was established by the Divine Marcus), but he should offer his excuse within the prescribed time; and if it is rejected, he then should appeal, otherwise he will do so in vain. 2The case is different with those who are called to some office of honor when they allege that they have an excuse; for they cannot allege their reasons for immunity unless they interpose an appeal. 3Governors usually are accustomed to send the name of a man to the order to which he belongs, asking it to elect Gaius Seius magistrate, or to confer upon him some other honor or office. Therefore, should an appeal be taken after the order has rendered its decision, or must it be taken on the submission of the name by the Governor? The better opinion is, that the appeal should be taken at the time when the order renders its decision; for the Governor appears rather to have given advice that someone should be appointed than to have, himself, made the nomination. Finally, the appeal should be taken to him, and not from him. 4But when the Governor himself is a member of the order (as sometimes happens), at the time when the person was appointed by it, an appeal can be taken to the Governor, as from the order, and not from the Governor himself. 5The term of two or three days should be computed from the time when the decision was rendered, for the purpose of taking an appeal. What, however, must be done if the decision was rendered under a condition? Should we compute the time for taking the appeal from the day of the decision, or from the day on which the condition of the decision was complied with? It is clear that the decision ought not to be rendered under a condition, but if this is done, what course must be pursued? It is proper that the time for appeal should immediately begin to be computed. 6What has been ordered with reference to decisions, namely, that an appeal should be taken upon the second or third day, should also be observed in other cases in which a decision has, indeed, not been rendered, but where, as was stated above, a party can appeal. 7An Address of the Divine Marcus prescribes that the days upon which a party can appeal should, to a certain extent, be available ones, if the person from whom the appeal is taken should not be present, so that the petition can be presented to him; for the Rescript says: “That day shall be observed upon which he shall first be able to appear.” Therefore, if after the appeal, the judge who rendered the decision should not be present, as he is accustomed to be, it must be said that the appellant is in nowise prejudiced; for he can appeal the first time that he has access to the judge. Hence, if the judge should conceal himself, the litigant should be entitled to the same relief. 8But what if the lateness of the hour caused him to retire, the judgment having been pronounced during the latter part of the day? In this instance, the judge will not appear to have withdrawn. 9We understand the opportunity of access to be when the judge appears in public. If, however, he has not done so, will the party be to blame for not having gone to his house; or not to have approached him in his garden; or even at any house in the country? The better opinion is that he should not be liable to censure. Therefore, if he did not have access to him in public, it will be better to hold that he did not have access to him at all. 10When, indeed, anyone has no opportunity to obtain access to the magistrate from whom he appeals, but has access to the appellee, let us see whether an exception can be pleaded against him, because he did not apply to the latter. The rule at present is, that if he had the opportunity to apply to either of them, there will be ground for an exception. 11The term of two days is understood to have reference to one’s own case. But how shall we distinguish one’s own case from that of another? It is clear that one’s own case is that whose profit or loss affects a litigant personally. 12Therefore an attorney, unless he is acting in his own behalf, will be entitled to the term of three days. When he is appointed to conduct his own case, the better opinion is that he will only be entitled to two days. But if he is acting partly in his own name, and partly in that of another, it may be doubted whether he will be entitled to two or three days. The better opinion is that he will be entitled to two days, when he acts in his own name, and to three, when he acts in the name of another. 13Guardians, as well as the defenders of public matters, and the curators of minors or insane persons, should have three days, for the reason that they appeal in the name of others. From this it appears that a defender can appeal upon a third day, provided he is conducting the case as a defender, and not in his own name; for as he is conducting it in behalf of another, he can appeal on the third day. 14Where anyone who has accused a guardian of being suspicious loses his case, Julianus, in the Fortieth Book of the Digest, states that he can appeal within three days, just as the defender of a minor. 15Where judgment has been rendered against an absent person, the term of two or three days must be computed from the date when he learned of the judgment, and not from the day on which it was rendered. When, however, it is said that an absent party can appeal from the day on which he learns of the judgment, this must be understood to mean if he was not defended in the case by an attorney; for if the latter did not appeal, it will be difficult for the former to obtain a hearing.
2 Macer libro primo de appellationibus. Si procuratorio nomine egeris et victus appellaveris, deinde iniusta appellatio tua fuerit pronuntiata, potest dubitari, num secundo die appellare debeas, quia, cum de tua appellatione iniusta pronuntiatum sit, tua interfuisse videtur. sed rectius dicetur tertia die appellare te posse, quia nihilo minus alienam causam defenderis. 1Sed si alius, quam qui iudicio expertus est, appellet, qualis est cuius interest, an etiam tertia die appellare possit, videamus. sed dicendum est secunda die appellare eum debere, quia verum est eum suam causam defendere. contrarium ei est. si dicat idcirco sibi licere intra triduum appellare, quia videtur quasi alieno nomine appellare, quando, si velit causam suam alienam videri, semet ipsum excludit, quia in aliena causa ei, qui iudicio expertus non est, appellare non liceat. 2Si is, qui ex libertinitate in ingenuitatem se defendebat, victus appellare omiserit, an pater eius appellare possit, maxime si dicat eum in potestate sua esse, quaeritur. sed si potest, quod magis probatur, secunda die, ut propria causa, appellare debet. 3Si pro eo, qui capite puniri iussus est, necessaria persona appellet, an tertia die audiri possit, Paulus dubitat. sed dicendum est hanc quoque personam ut in propria causa secunda die appellare debere, quia qui sua interesse dicit, propriam causam defendit.
2 Macer, Appeals, Book I. If you have conducted a case as an attorney, and, having been defeated, appeal, and your appeal has been decided to be ill founded, it may be doubted whether you should appeal on the second day, for as judgment has been rendered against your appeal, you appear to be the party in interest. It is, however, better to hold that you can appeal on the third day, because you have, nevertheless, defended the case of another. 1If, however, another than a party litigant should appeal, for example, one who has an interest, let us see whether he can appeal on the third day. It must, however, be said that he ought to appeal on the second day, because it is true that he is defending his own case. It would be opposing himself if he should allege that he has a right to appeal within three days, because it is held that if he takes an appeal in the name of another, when if he wishes his own case to appear to be that of another, he excludes himself, for the reason that he who was not a party in the beginning has no right to appeal in another’s case. 2If, however, one who is alleged to be a freedman should defend himself on the ground that he is freeborn, and, having been beaten, neglects to appeal, the question arises whether his father can do so, especially if he states that he is under his control. But if he can appeal, it is better to hold that he should do so on the second day, as conducting his own case. 3Where a near relative appeals in behalf of a person who has been sentenced to death, Paulus doubts whether he should be heard on the third day. It must, however, be said that a person of this kind should appeal upon the second day, as representing himself; because he who alleges that he is interested is defending his own case.
3 Idem libro secundo de appellationibus. Illud videamus, si, cum imperatori scriberetur, exemplum litterarum litigatori editum sit neque is appellaverit et postea contra eum rescriptum sit, an appellare a litteris pridem sibi editis possit? quia qui tunc non appellavit, vera esse quae scripta sunt consensisse videtur: nec audiendus est, si dicat eventum rescripti sacri se sustinuisse.
3 The Same, Appeals, Book II. When a letter is written to the Emperor, and a copy of the same is shown to one of the litigants, who did not appeal, and afterwards the Emperor decides against him in a Rescript, let us see whether he can appeal from the letter which was previously shown to him, since as he did not do so at the time, he seems to have admitted its contents were true. He should not be heard, if he should state that he was waiting for the issue of the Imperial Rescript.