Juridical Dissertation on Contumacy

45. num. 4. See Brunnem. ad tit. ff. de damn. inf. l. 1. §. 5. The plaintiff ought to prove that this citation was legitimately insinuated. Carpz. d. l. num. 68. Hence it is accustomed to be pronounced: If the plaintiff should document that he had legitimately insinuated the citation, he would be heard regarding it. For if it does not appear, or the Judge doubts it, the proceeding does not go into Contumacy. Carpzov. Jurispr. Forens. p. 1. c. 9. def. 6. Mev. p. 2. dec. 208. & p. 3. dec. 222. & 266. & p. 8. dec. 407. Add. Gail. l. 1. Obs. 58. & 55. Mynsing. Cent. 2. Obs. 62. But then the citation is to be revoked, and the party ordered to properly insinuate that mandate. Mev. p. 3. Dec. 222. where he simultaneously presents this formula, it is not yet to be deferred into Contumacy, but for an urgent reason, a renewal of the mandate is ordered, and the plaintiff is adjudged bound to bring such to the knowledge of the defendant, and to prove the insinuation. Brunn. ad l. 53. ff. de Re Jud. & in proc. civ. c. 4. But it is to be proved primarily by the report of the ordinary or judicial messenger, concerning which it ought to be certain in the Records; otherwise, neither the citation nor the whole process for Contumacy is valid. l. 5. §. 1. ff. Ex quib. caus. in possess. eat. and there Brunn. n. 1. & in proc. c. 3. n. 36. Hahn. ad Wes. de in Jus voc. n. 13. And so that it may appear concerning the individual qualities and circumstances of the citation, namely to whom, when, how, and in what place it was done, what he answered, or what else happened regarding the act of execution; all these things are to be reported by the executor of the citation himself, to be sent to the Judge himself, or to the master of the Records, or the Actuary of the courts, who is called the protonotary: To which messenger, on account of his chosen fidelity and the religion of his oath, credence is given regarding his act of execution. Whence, if he reports that the cited party replied that he did not wish to come, credence must be given to him to this effect, so that the Judge may condemn the cited party to the penalty of Contumacy: For the response of the cited party is among the appurtenances of the citation, arg. c. præterea X. de offic. & pot. Jud. deleg. It is otherwise regarding the proof of the act of citing. Lauterb. de Nuncio θ. 50. e. gr. that he was affected by injury by him, or the commission of the Judge itself: Gail. l. 1. Obs. 54. n. 4. & 5. Brunn. in tr. de proc. c. 3. n. 38. Mindan. de mandat. Judic. l. 2. c. 21. θ. 2. B. Dn. Lauterb. Diff. de Nuncio θ. 56. & seqq. For the commission of the Judge is an extrinsic solemnity, which is not presumed unless it is proved. Brunn. ad l. 30. ff. de V. O. Nor is a citation valid unless it has proceeded from the mandate of the Judge: l. ult. C. de exhib. res. and there Brunn. Cz. lib. 1. Resp. 25. n. 6. Which necessary requirement would not exist, and would be sought in vain, if it were always understood after the citation had been made from the mere assertion of the messenger that the mandate of the Judge had preceded it.