Juridical Dissertation on Contumacy

that he will not appear, should nevertheless appear afterward, or be able to show a just impediment that prevented him from appearing, he does not become contumacious from that fact alone, since words alone do not suffice to contract Contumacia (although it can hardly be denied that through them it may be qualified and rendered notorious); rather, it is necessary that the deed follows, per l. un. ff. si quis Jus dic. non obtemp. arg. l. 48. §. 3. ff. de Ædil. Edict. c. 52. X. de appell. Wesemb. ad l. 13. C. de Jud. num. 11. & 17. & ex eo Tabor. ad C. J. A. cit. loc. Thus, also, to contract this true Contumacia, it is by no means sufficient if the words of the cited party sound ambiguous in this passage, such as if he said, "Er werde wol nicht kommen" [He will probably not come]. According to the opinion of Joh. Georg. Nicolai, d. l. num. 3. Mev. P. 6. dec. 64.

This presumed Contumacia exists if it is still doubted whether the order of the judge reached him: when the messenger did not find the person to be cited, or it is not certainly known to the judge whether he was found, and the cited party has just causes for his absence. J. P. W. P. 1. tit. 12. §. "Der andere Ungehorsam" [The other disobedience].

By reason of the Efficient Cause, Contumacia is divided into that which is committed by the Plaintiff and that which is committed by the Defendant; for not only the Defendant but also the Plaintiff, though more rarely, commits Contumacia. Nov. 113. c. 3. Statutum Universitatis hujus in C. Tabor l. cit. Brunnem. d. tr. c. 4. num. 3. Matth. Stephan. ad d. Nov. c. 3. & communiter Ddr. Hence, this is common to both regarding the fact that one is called Contumacious, [namely] that the obedient party accuses the other's Contumacia before the judge: that is, he complains of it, which is called contumaciren / oder deß Ungehorsams beschuldigen [to accuse of contumacy or to blame for disobedience]. Matth. Steph. ad Nov. 112. c. 3. But you might ask, how can one proceed against the Plaintiff for Contumacia, when there is the most certain rule of law that no one is compelled to sue against his will, in l. un. Cod. ut nemo invit. agere vel accus. teneatur? Truly, that applies only if one has never begun to sue: but the Plaintiff, once an Action has been initiated, unless he wishes to be considered a calumniator who finds pleasure in harassing men with false lawsuits, must absolutely pursue it and bring it to an end, and thus he ought to walk by the same path he once chose. per d. Nov. 112. c. 3. & Auth. Qui semel: C. Quom. & quand. Jud. and there Perez. ad h. tit. arg. l. 5. C. de oblig. & act. Matth. Stephan. & Anton. Daniel Sonnemann. ad d. Novell. 112. c. 2. & 3. Ludov. Engel. Collat. Univ. Jus Canon. tit. de dol. & contum. n. 7.