5. WHETHER APPEALS ARE TO BE ACCEPTED OR NOT
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BOOK FORTY-NINEIACCEPTANCE O F APPEALS 385 ing opinion is that he should observe the second day. If, however, he is litigating partly in his own name and partly in that of another, there can be room for doubt whether a two-[day] or three-day period is to be observed. The prevailing view is that he should observe two days so far as his own interest goes and three as regards the other. 13. Tutors, also defensores rei publicae and curators of the young or of an insane person, should have the third day for the reason that they are appealing in another's name. From this it appears that a defensor may appeal on the third day, provided only that he is bringing the case as defensor and not in his own name, although, by bringing his own case under the cloak of another's name, he can appeal on the third day. 14. Julian, in the forty-fifth book of his Digest, has written that if a person brings an action concerning a suspect tutor and loses, he ought to appeal within the three-day period, expressly as defensor of the pupil. 15. If [a judgment] has been given against someone in his absence, the two-[day] or three-day period must be reckoned from the time it comes to his knowledge, not from the time it was given. We understand this statement, that an absent person may appeal as from the time that [the judgment] comes to his knowledge, as applying only where he was not defended in the case by a procurator ; for if the latter did not appeal, it is difficult for the former to be given a hearing. 2 MACER, Appeals, book 1: If you bring an action in the capacity of a procurator, lose, and appeal, and your appeal is then pronounced unjustified, it can be doubted whether you must appeal on the second day because, since it was your own appeal that was pronounced unjustified, your interest seems to be involved. But it will more correctly be said that you can appeal on the third day, since you are nonetheless defending another's case. 1. If, however, a person, other than the bringer of the action, but of such a kind that he has an interest, appeals, let us see whether he also can appeal on the third day. It must, however, be said that he ought to appeal on the second day, because the truth is that he is defending his own case. If he should say that it is lawful for him to appeal within a three-day period because he appears to be appealing in another's name, when, wishing his case to appear to be someone else's, he has left himself out, [the truth] is the opposite, because a person who has not conducted the action may not lawfully appeal in another's case. 2. If a person who was defending his right to freeborn rather than libertine status has lost his action and fails to appeal, can his father appeal, especially if the latter states that he is in power? If, indeed , he can do so, as is approved by the majority, he must appeal on the second day, as [if] in his own case. 3. Paul doubts whether, if a relative appeals on behalf of someone sentenced to capital punishment, he can be heard on the third day. It must be said that such a person also should appeal on the second day as if in his own case, because anyone who claims that his own interest is affected is defending his own case. 3 MACER,Appeals, book 2: Let us see, when a letter is sent to the emperor [from the judge], if a copy was issued to the litigant and he does not appeal and a rescript is subsequently issued against him; can he appeal from the letter copied to him long since? Because he did not appeal at the time, he is seen as having accepted the truth of what was contained in the letter; nor should he be given a hearing if he says that he was awaiting the outcome of the imperial rescript. WHETHER APPEALS ARE TO BE ACCEPTED OR NOT 1 ULPIAN,Edict, book 29: It is not customary for appellants to be heard except those whose interest is affected, or who have been given a mandate, or who are without authorization administering another's business which will...