156/2008 Official Gazette of the DOD (542495)
(A PUBLICATION LAW)
Appeal. One time practice rule. The prohibition of a second appeal by
same party against this decision also applies in the event that the first
rejected as unacceptable.
Decision number
156/2008
DODEKANIS COURT OF APPEALS
Composed by Judges, Evripides Lagoudianakis, President of Appellants,
Emmanuel Vasilakis, Eleni Fragakis [Rapporteur], Appellants and the Secretary
Ekaterini Diakokoliou.
He sat publicly in his audience in Rhodes on 14.3.2008 to judge
the following case between:
[A] Of the Appellant: M. widow M. S., a resident of Rhodes, who was represented by
of Savva Papageorgiou's attorney [with no. 1312/2008
promissory note for collection of attorney's fees D.S. Rhodes].
The Appellants: 1) P. K., a resident of Kremastis Rhodes, who does not
represented by proxy, 2) Anonymous insurance company
based in Athens under the name “I. AE" legally represented, h
which was represented by the attorney of Stergos-Christos
Paraskeva, 3) A. M., a resident of Rhodes, and 4) An anonymous general company
of insurance based in Athens under the name "E. SA" legally
represented, who appeared through their attorney
Ioannis Karamihalis.
[B] The Appellants: 1) A.M., resident of Rhodes, and 2) Anonymous company
of general insurance based in Athens, under the name "E. SA" legally
represented, who appeared through their attorney
Ioannis Karamihalis.
Of the Appellant: M. widow M. S., resident of Rhodes, who was represented by
attorney of attorney of Savva Papageorgiou [with no. 1312/2008 promissory note
advance collection of legal fees B.D. Rhodes].
Plaintiff-appellant-respondent (along with other non-parties) filed in
Single-member Court of First Instance of Rhodes against the defendants (petitioners-appellants) on
from 27.6.2000 and with no. exp. No. 197/4.7.2000 her lawsuit. The court
that with its 188/2001 final decision, partially accepted the lawsuit,
opposition of the parties. Against this final decision, actions were taken in
court that issued it, addressed herein: [A] From the plaintiff n
from 17.4.2006 and with no. exp. 131/5.5.2006 her legal appeal, copy
of which was filed in the secretariat of the present under no. exp. cat.
186/8.5.2006, for the discussion of the one that was legally written in its turn
in the relevant panel, the one referred to was set to be adjourned
at the beginning of the present. And [B] From the 3rd and 4th defendants or from
12.4.2007 and with no. exp. 145/13.4.2007 their legal appeal, copy
of which was filed in the secretariat of the present under no. exp. cat. 164/
17.4.2007. For the discussion of the one that was legally written in its turn at
relevant panel, the one referred to at the beginning of it was declared admissible
present.
During the discussion in the audience, during which the case was legally pronounced
in turn from the relevant board, their attorneys
parties, developed their claims orally and referred to
written proposals submitted by them.
STUDY THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
I. The defendants with no. exp. (a) 131/2006 (No. Court of Appeal
186/2006) and (b) 145/2006 (Court of Appeal no. 164/2007) which impose
against the 188/2001 decision of the Single Member Court of First Instance of Rhodes which was issued
during the special procedure of disputes for damages from a car, etc. and
contrary to the objection of the parties, they are subject to the same procedure and concern
claims from the same car accident as the contract
of insurance against partly the same persons, must according to article 246 of the Civil Code
be joined and co-tried due to their obvious connection, since with him
in this way, at the discretion of the Court, its conduct is facilitated
trial, the issuance of contradictory decisions is avoided and there is a reduction of
expenses.
According to the provision of article 514 of the Civil Code, the exercise of a second is prohibited
appeal by the same party against this decision, even if it is supported
on other grounds or directed against another chapter. Besides, from the arrangement
Article 532 of the same Code states that if any of the
conditions for the admissibility of the appeal, especially if the appeal was not filed
in due time and in accordance with the legal conditions, then the court the
rejects, as unacceptable and ex officio. Purpose of the first of the most
above provisions is to avoid fragmentation of the trial and delay
of the final judgment on the dispute to the detriment of the winning party.
Conditions for applying the provision of article 514 of the Civil Code are a) to
this is a second appeal, b) with the second appeal being affected by
same decision, which was affected by the first appeal and c) to be about
appeal, brought against that party, as a defendant against whom
the first appeal was filed. The prohibition of the exercise of a second appeal by him
party against this decision is valid, at the discretion of the Court, and
in the event that the first was rejected as inadmissible, since its admission
contrary opinion not only contradicts the clear wording of article 514 of the Civil Code,
but also in the further purpose of this, since - in the opposite case - it would have
as a necessary consequence the unacceptable slowdown in the occurrence of dependents
from the finality of results of res judicata and enforceability
(KPolD 321, 904 § 2 section a`), if the party defeated in the first instance had the
right to repeatedly inadmissibly exercise the remedy of appeal (see S.
Samuel, The appeal ed. E. para. 161 ff., Klamari, The rule of once only
of exercising legal remedies 1981 p. 119 ff. and 185 ff., OlAP 1138/1974 NoB
23.640, Legislative Decree 8436/1998 Greece 40.411, Legislative Decree 172/1980 NoB 30.240, Legislative Decree
1015/1980 Legislative Decree 28.1533, Legislative Decree 3044/1983 Legislative Decree 34.727, Legislative Decree 5240/1985 D. 17.358,
EfAth 2075/1986 ElDni 27,835 and EfAth 2185/1989 EllDni 31,882 Ef Pir.
570/1996 ElDni 38.681, Official Gazette 1315/1997 NoB 1998.661).
In this case, the following emerges from the documents in the case file:
(1) The no. 16/2005 decision of this Court rejected as inadmissible
the with no. 421/2001 appeal regarding the plaintiff-appellant M. widow M. S., for
the reason that the appealed decision 188/2001 of the Single Member Court of First Instance of Rhodes
(issued during the special procedure for car damage and by
his insurance contract) which was issued on the 197/2000 lawsuit re
compensation from a car accident, was partially final as to
above plaintiff-appellant M. S. (because there was a conduit fund for loss
of income for which the appellant suspended the progress of the trial until
delivery of a copy of the lawsuit to the competent D.O.Y.) and was not subject to
appeal nor against its final provisions. By extension, for the same reason
the above 16/2005 decision rejected as inadmissible the co-litigation with
no. 401/2001 appeal and 191/2002 additional grounds thereof, 417/2001 and
423/2001 appeals of the appellant-defendants in the part directed against
of the defendant-plaintiff M. S.. Then the latter as the appellant with the
from 7-24-2005 (ex. no. cat. 313/2005) her summons brought back for discussion the
above appeals, stating that it is waiving its petition 421/2001
of her appeal and her 197/2000 action (as regards the amount of Dr. 1,350,000
for loss of income of twelve months) and this Court with no.
55/2006 decision, rejected the summons as inadmissible on the grounds that,
since these appeals were dismissed as inadmissible by decision 16/2005
of this Court, the pending litigation created with the
exercising them and further that a) it is not possible to waive an appeal which
has already been rejected by a previous decision, and b) there was no pending litigation
to be able to waive the writ.
Already the appellant M. S. with the first of the above co-litigants before him
Court of Appeals again citing the waiver of the petition
of her 421/2001 appeal and her 197/2000 action (as regards the fund from
1,350,000 dirhams for twelve months' loss of income), again requests the
disappearance of the aforementioned decision 188/2001 of the Single Member First Court of Rhodes v
the part that concerns her. The disappearance of the same decision in the part that
concerns the M. S. regarding the provisions harmful to them, they request with the
above second of the co-litigation appeals as appellants of
respondents, A. M. and the Insurance Company under the name "E." stating
at the same time that they resign from the no. of deposition 401/2001 previous v
of the same appeal decision. The above against her with no. 188/2001 appeals
according to their order regarding the MS above co-litigation new ones
however, appeals are inadmissible because a) they constitute a second appeal with which
a) the same decision, against which the same parties complained, is affected
with the first ones with no. 421/2001 and 401/2001 appeals against them
their opponents and b) because on the former, identical in content and
parties, as already mentioned, appeals, the 16/2005 decision has been issued
of this Court by which they were rejected as inadmissible and not
means waiver of appeals on which a decision has been issued
Court of that. The court costs for the present degree of jurisdiction of
while the defendants in the first appeal must be imposed against the appellant
M. S., while the court costs of the latter as the defendant must be
be imposed against the appellants in the second of the joint appeals
as specifically defined in the ordinance (articles 176 and 183 of the Civil Code).
FOR THOSE REASONS
• Conjointly sues with no. exp. (a) 131/2006 and (b) 145/2006 against
188/2001 of the decision of the Single Member Court of First Instance of Rhodes against the
parties.
• Rejects them as unacceptable.
•Imposes against the appellants of each of the co-defendants
appeals the court costs of the appellants of the present degree of jurisdiction,
which it determines for each appeal at four hundred (400) euros.
• It was judged, decided in Rhodes on 2.6.2008 in a secret conference and
published in his audience in Rhodes on 4.7.2008 in extraordinary public
meeting, in the absence of the parties and their attorneys, with
secretary present.
The President The Secretary
E.F.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)