Juridical Dissertation on Contumacy

these expenses ought not to be reserved until the end of the lawsuit, but in any article of Law that impedes the process, they are to be fully restored to the opposing party, otherwise [the party] is not admitted further into the Court. l. 15. C. de Judic. ibique Brunnem. l. penult. C. de fruct. & lit. expens. Sonnemannus ad d. Nov. 69. c. 3. n. 3. add. n. 4. Even though by the custom of the Germans, as is also accepted at the Consistory of this nourishing Eberhardina, they are mostly reserved until the decision of the lawsuit: Vultej. de Judic. l. 2. c. 6. num. 168. Mev. p. 5. dec. 180. Yet that the common law is still observed in Saxony, the witness is: Carpz. d. tr. de proc. loc. alleg. From which expenses not even the Plaintiff, even if he does not wish to sue further, escapes immune. per c. 1. X. de dol. & contum. in 6.to Carpz. cit. loc. t. 8. art. 1. n. 37. & seqq. Carol. Scharsmidt ad Nov. Exerc. 10. ad Nov. 53. §. 30. & Nov. 112. c. 22. The expenses, however, are to be liquidated by the present party, but moderated by the Judge, and, once moderated, confirmed by the oath of the present party. Auth. post Jusjur. C. de Judic. Auth. si verò C. eod. ibique Brunnem. The same ad l. 79. ff. de Judic. Finally follows the adjudication, which, however, must not be made for less than what was taxed and sworn, with an appeal reserved for the other party, Brunnemann ad l. 15. C. de Judic. Carpz. Resp. l. 3. Resp. 30. And Mr. Rebhan contends that these expenses are to be adjudicated even if not requested (in Diss. de expens. lit. §. 8.), for the reason that Contumacy, by which the very authority of the courts is despised, may not remain unpunished, d. l. 15. C. de Judic. Sonnemann agrees (ad Nov. 69. c. 3.). See Brunnem. ad l. 79. de Jud. n. 2. Mev. p. 7. dec. 241. But is a Defendant (if the Plaintiff observed all terms, appeared in the first to accuse the absence of the cited party, and likewise in the second), appearing at a peremptory citation, to be condemned to the Plaintiff for expenses in the terms thus awaited? Concerning that, see Zas. ad l. 53. ff. de Judic. n. 23. He can also, if he cannot refund the expenses for which he was thus condemned, be coerced by detention of the body, per c. 5. X. h. t. Furthermore, a Contumacious party does not appeal. l. 73. §. fin. ff. de Judic. l. 13. §. 4. C. eod. l. 23. §. fin. de appell. ibique Brunnem. Anton. Daniel Sonnemann. ad Nov. 82. c. 5. num. 9. Provided that the judgment instituted against the Contumacious party, and the proceedings with him, were just, and the contumacy is real, not feigned, l. 73. de Judic. l. 3. C. Quom. & quand. Judex: ibique Brunnem. add. ad d. l. 73. de Judic. Mev. p. 5. dec. 179. Where he deals at length with the requisites for a Contumacious party to be excluded from the benefit of appeal. And that consists in arriving, while at a peremptory calling he appears neither by himself nor through another. per l. 73. §. fin. ff. de. Judic. Brunn. ad d. l. 23. ff. de appell. But not in not acting, or in not responding, or in not exhibiting, or in not swearing concerning calumny: per l. ult. §. 1. ff. de Appell. Brunn. d. loc. Gail. l. 1. Obs. 132.