restricted access 1. APPEALS AND REFERRALS
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BOOK FORTY-NINE APPEALS AND REFERRALS 1 U L P I A N , Appeals, book 1: As everybody knows, the practice of appeals is both frequent and necessary, inasmuch as it corrects the partiality or inexperience ofjudges; not but what it may sometimes alter well-delivered judgments for the worse, for it is not [necessarily] the case that the last person to pronounce judgment judges better. 1. Is it possible for an appeal to be made against an imperial rescript, if perhaps the provincial governor or some other person consults him and a rescript is sent in reply to that consultation? Does there survive a right of appeal? What, then, if the person who consulted [the emperor] made a false statement? There is extant on this subject a rescript of the deified Pius to the commonalty of the Thracians, in which it is shown that there should be an appeal. The words of the rescript are as follows: "If someone writes something to us, and we send some form of reply to it, those who wish to appeal from that reply will be permitted to do so. For if they shall show that what was written in the letter was false or misrepresented, it will not appear that the case was in any way prejudiced by us in replying to the letter which set out the facts otherwise." 2. Consequent on this, it appears to be laid down by the rescript that there should be no appeal against the judge's consultation, if he does perhaps pronounce an interlocutory judgment that he is going to consult the emperor, since it is possible to appeal after [the issue ofl the rescript. 3. If a person makes a mistake in his appeal, as suppose he appeals to onejudge when he should have done so to another, we have to see whether the error was at all prejudicial to him. And if, indeed, his mistake was to appeal to a lower judge when he should have appealed to a higher, the error will harm him; if, however, he appealed to a higher judge, the error will be in no way prejudicial to him. This provision is found in many constitutions. Finally, when someone, by rescript of the emperor, had accepted a judge from the consuls and had appealed to the urban prefect, his error was relieved by a rescript of the deified brothers of which the words are as follows: "Since you say that it was through making a mistake that you appealed from the judge, whom you had by our rescript accepted from the most excellent consuls, to our friend Junius Rusticus, the urban prefect, the most excellent consuls may examine the case precisely as if the appeal had been made to them." If, therefore, someone appeals to an equal or a superior judge, but [confuses] one for another, his situation is such that the mistake does not harm him; but if to an inferior judge, it will. 4. The written statement of appeal which is issued should be so drafted as to have written on it both by whom it was delivered, that is, who the appellant is, and against whom and from what judgment. 2 MACER, Appeals, book I: But if someone appeals apud acta, it will be sufficient if he says, "I appeal." 3 ULPIAN, Appeals, book 1: It has, I know, been asked whether, if someone fails to add to his written statement [of appeal], the name of the opponent against whom he is appealing, he is met by a defense. I think that no [such]defense should lie. 1. This also has come into question if [someone] has a number of opponents, some of whose names are included in the written statement and others not, whether a defense can be made against him by those whose names are not included, just as if he had acquiesced in the judgment so far as they are concerned. I think that since there is a single action, [this] defense should not apply. BOOK FORTY-NINE 1 APPEALS AND REFERRALS 1 ULPIAN, Appeals, book 1: As everybody knows, the practice of appeals is both frequent and necessary, inasmuch as it corrects the partiality or inexperience ofjudges; not but what it may sometimes alter well-delivered judgments for the worse, for it is not [necessarily] the case that the last person to pronounce judgment judges better. 1. Is it possible for an appeal to be made against an imperial rescript, if perhaps...


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