Juridical Dissertation on Contumacy

if you think it to be in your interest, or feel that you have been aggrieved; since this does not mandate an equally precise appearance, by that very fact, while it commits the faculty of appearing to the absolute will of the cited party, who, if he does not wish to appear, is not bound to; and thus the cited party, who is not forced to appear, cannot be called Contumacious, nor indeed is there a condemnation into Contumacy unless the term be peremptory. Joh. Petr. Surdus: Dec. 26. n. 7. & 8. Wesemb. ad d. l. 13. C. de Judic. n. 13. & cum eo Tabor ad C. J. A. d. l. Mev. p. 8. Dec. 428. num. 6. Besold. p. 4. Consil. 167. n. 4. Much more (3.) do we order to be removed from our Object, a Citation [that is] invalid or illegitimate by itself; for such a one is of no effect in Law, does not bind the cited party to appear, nor does it place him in delay: therefore, regarding such a citation, the process and sentence is void, as having been brought against an undefended party. Wesemb. d. l. & ex eo Tabor l. cit. Mev. P. 3. Dec. 81. num. 1. Brunnem. ad l. 45. ff. de Re Judic. quem add. de process. civ. c. 3. in fin. Nor does a Citation made by a compromissary Arbitrator pertain to this, since it is not properly a Citation, but rather a Summons, arg. l. 53. §. 1. ff. de Judic. l. 65. & seqq. eod. so that one not appearing for it cannot truly be called Contumacious. B. Dn. Lauterb. de arbitr. compromiss. q. 34. but yet of the one who could punish the Contumacy as an arbiter. per l. 39. princ. de arbitr.

X V I.

A Citation, however, in order to have the power of constraining, and for one to be deemed Contumacious because of it, is (which is regularly done through a messenger. l. 7. 9. Cod Quom. & Quand. Jud. Vid. l. 17. C. de dignitatib.)

I. To be duly written, and thus in it must be expressed, (1.) The Name of the citing Judge: per l. 8. ff. de Judic. Vultej. de Judic. l. 2. c. 2. num. 22. So, however, that in an ordinary [case] the name of the dignity and office suffices, and the name of the individual is not required. Carpz. de process. tit. 7. art. 2. n. 9. (2.) The Names and surnames of each litigant: For the Defendant ought to know with whom the lawsuit is to be instituted. c. 35. & fin. X. de Rescript. c. 2. eod. in 6.to. Carpz. loc. cit. n. 10. Gail. l. 1. Obs. 49. Vid. tamen Carpz. cit. loc. num. 16. Vultej. de Judic. l. 2. c. 3. n. 31. Mynsing. cent. 2. Obs. 66. (3.) The Cause for which and to which one is cited: O. Cam. p. 3. tit. 12. §. Und sollen zu solchen [So that he may deliberate whether he wishes to yield or to contend, lest later it be necessary to grant a new delay for deliberating. Whence today a copy of the petition is attached.