Juridical Dissertation on Contumacy

XIX.

But if the incompetence of the Judge is notorious, then it is permitted to remain [at home] with impunity at the issued citation, and not to obey the Judge: per the rule of Paul in l. fin. ff. quod quisq; Jur. in al. stat. ut ips. eod. jur. utatur. l. 53. §. fin. ff. de Re Judic. Gail. l. 1. Obs. 48. num. 9. Mynsing. Cent. 6. Obs. 7. So that the matter may become clearer, I shall add an example. [It is] a penalty [to] a notoriously incompetent Judge, e.g., the town senate, to cite Me, who am an Academic citizen, I am not bound to appear, because the privilege is notorious: See Rebuff. de privileg. scholarum 154. Hilliger. ad Donell. Enucleat. l. 23. c. 10. lit. E. Thus, furthermore, if a Foreigner is cited without auxiliary [proceedings], he is equally not bound to come, nor has he need to allege his own incompetence. Not obst. l. 5. ff. de judic. Barbos. ad l. 5. de Jud. Mev. P. 3. Dec. 305. See B. Maurit. de Judic. Rothwilensi. c. 4. n. 4. & c. 2. n. 9. Müller, in Addit. ad Rümmelin. Aur. Bull. p. 2. diff. 1. d. 6. But because both parties ought to be present in court: the Plaintiff also is to be cited, or at least reminded of the term set, hence the citation transmitted to the Plaintiff is called: Ein Tag-Zettul. A summoning schedule. Cz. in proc. tit. 7. art. 1. n. 30. of which Nicolai has the formula de process. c. 3. n. 47. Add. Schwendendorff. ad Fibig. p. 1. c. 2. n. 3.

XX.

But since he incurs Contumacy who has not obeyed not only the Judge citing, but also anyone else ordering something. d. l, 53. ff. de Re Jud. where the contempt of the Judge is primarily regarded: Tabor ad C. J. A. d. l. num. 19. therefore it is certain by itself that a judgment, both interlocutory and definitive, constitutes the object of Contumacy primarily, especially if some prejudicial threat is annexed unless there is obedience. Whence, since the laudum, or judgment of a compromissary arbitrator: An Urtheil deß willkührlichen Richters. is not a true judgment (namely, judicial) l. 13. §. 5. ff. de his qui not. infam. B. Dn. Lauterb. in tract. de arbitr. comprom. Mev. p. 8. dec. 12. n. 2. 3. 4. although it may have the function and form of a judgment: Mev. d. l. Therefore it pertains by no means to our object, nor is an arbitrator properly a Judge, since the consent of private individuals does not make a Judge; l. 3. C. de Jurisdict. but he is said to take on the parts of a Judge in l. 13. §. 1. ff. de Rec. arbitr. l. 14. C. de Judic. Hence also the division of judgment into voluntary and necessary is not of a univocal genus, but ὡς ἐν [as in] Vinn. Jpr. contr. l. 3. c. 2. lit. m.