CIVIL PROCEDURE APPEAL
LexInter | October 19, 2012 | 0 Comments

CIVIL PROCEDURE APPEAL

Appeal No. 10-30.191:
Applicant (s) to the cassation: Mme FX .. wife Y …;
Defendant (s) at the cassation: Société Laurent Mayon and M. AY ..

Appeal n ° 11-11.509  :
Applicant (s) to the cassation: M. AY ..
Cassation defendant (s): Mme FX .. wife Y … and company Laurent Mayon


Given their connection , join appeals n ° 10-30.191 and n ° 11-11.509;
On the admissibility of appeal n ° 11-11.509, after notice given to the parties in application of article 1015 of the code of civil procedure:

Whereas Mr Y …, having formed a cross-appeal, is not admissible to subsequently form a main appeal against the same judgment;
On the single plea, taken in its two branches, of the main and cross-appeals (n ° 10-30.191):

Considering article 528-1 of the code of civil procedure;

Whereas a registered letter sent by the registry constitutes the notification provided for by this text, regardless of whether it is tainted with an irregularity;

Whereas, according to the judgment under appeal delivered on referral after cassation ( Civ . 2, February 21, 2008, n ° 06-14.726), that Mrs. X … wife Y … and Mr. Y … respectively filed main appeal and appeal incident of a judgment pronouncing in their regard the opening of judicial reorganization proceedings;

Whereas, to declare the appeal inadmissible, the judgment retains that the registered letter sent by the registry of the court to Mr. and Mrs. Y … to notify them of the judgment, which was returned to its sender for correction of the ‘identity of the recipient does not constitute notification within the meaning of Article 665 of the Code of Civil Procedure and that it has not been established that the judgment was notified to them within two years of its pronouncement;

That by ruling thus, the Court of Appeal violated the aforementioned text;

FOR THESE REASONS :
DECLARE IRRECEIVABLE the appeal No. 11-11509;

BREAK AND CANCELED, in all its provisions, the judgment rendered on November 17, 2009, between the parties, by the Bordeaux Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the Court of Appeal of Agen  ;

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