IN THE NAME OF THE FRENCH PEOPLE
THE COURT OF CASSATION, SECOND CIVIL CHAMBER, delivered the following judgment: On the single plea, taken in its second branch: Considering articles 545, 550 and 551 of the code of civil procedure; Whereas it can be deduced from these texts that when an incidental appeal is directed, in the same instance, under the conditions of form and timeframe provided for by articles 550 and 551 of the code of civil procedure, by a party other than the author of the main appeal against a decision which was not subject to immediate appeal regardless of the decision on the merits, this appeal is admissible, even though it is brought against a decision which is not that whose main appeal, directed against the decision on the merits, requests the reversal;
Whereas, according to the judgment under appeal, that Mr. and Mrs. X … having assigned Mr. and Mrs. Y … in demarcation of their contiguous properties, a district court ordered an expertise; that the expert having filed a report considering that the parties had reached an agreement on September 30, 2003, the memorandum of understanding that he had drawn up was however not signed, and the magistrate, by order of August 26, 2005, ordered the continuation of the expert appraisal operations, following which a new report was filed on March 27, 2006; that the court of instance, by judgment of October 24, 2006, declared perfect the agreement expressed by the parties on September 30, 2003 and accordingly fixed the dividing limit; that Mr. and Mrs. X … having appealed by basing their claims on the report filed on March 27, 2006, Mr. and Mrs. Y … concluded in the confirmation of judgment and failing that,
Whereas to declare inadmissible the requests for annulment of the order of August 26, 2005 and of the forensic expert report and to set, by reforming the judgment, the dividing limit according to the plan appended to said report, the judgment holds that the court appeal was seized of an appeal directed against the judgment of October 24, 2006 and not against the ordinance of August 26, 2005; That by ruling thus, while the respondents were admissible to form an incidental appeal against the order of August 26, 2005, the court of appeal violated the aforementioned texts; FOR THESE REASONS :
BREAK AND CANCELED, in all its provisions, the judgment rendered on March 4, 2008, between the parties, by the Aix-en-Provence 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 Aix-en-Provence, otherwise composed; Condemns Mr and Mrs X … at the costs; Considering article 700 of the code of civil procedure, rejects the respective requests of the parties; Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;
Thus done and judged by the Court of Cassation, second civil chamber, and pronounced by the president in his public hearing on June 4, two thousand and nine. SUBMISSION APPENDIX to this judgment Means produced by Me HEMERY, lawyer advising for Mr. and Mrs. Y … The judgment under appeal is criticized for having declared inadmissible the requests for annulment of the order of 26 August 2005 and of the report of legal expertise and to HAVE consequently fixed the dividing limit of plots X … and Y … according to the plan annexed to said report; FOR THE REASONS THAT, the Court is seized of an appeal directed against the judgment of October 24, 2006 and not against the order of August 26, 2005, which was not discussed before the Court; accordingly, requests for
1 °) – ALORS ON THE ONE HAND THAT it cannot be appealed against the orders of the Judge responsible for the control of expertises that at the same time as the judgment on the merits; that based on the fact that the ordinance had not been discussed before the Court, when it could not have been, the Court of Appeal violated article 170 of the Code of Civil Procedure; 2 °) – ALORS ON THE OTHER HAND THAT the incidental appeal is admissible in any event, regardless of the limits of the main appeal; that spouses Y …, respondents, could therefore form an incidental appeal against the order of the Judge responsible for the control of expertises; that based on the limits of the notice of appeal, the Court of Appeal violated articles 550 and 551 of the Code of Civil Procedure.
Publication: Bulletin 2009, II, n ° 137
Contested decision: Aix-en-Provence Court of Appeal of March 4, 2008
Titles and summaries: CIVIL APPEAL – Incident appeal – Admissibility – Conditions – Determination – Scope
The incidental appeal directed, in the same instance, against a decision which was not susceptible of immediate appeal regardless of the decision on the merits, even if it is brought against a decision other than the decision on the merits the main appeal of which requests the reversal.
The judgment must therefore be set aside which, in order to declare inadmissible an incidental appeal tending to the annulment of an order of a magistrate who ordered the continuation of expert operations and that of the expert report, holds that the Court of Appeal was seized of
CIVIL APPEAL – Cross-appeal – Cross-appeal against a decision not open to immediate appeal regardless of the decision on the merits – Admissibility – Conditions – Cross-appeal against a decision other than the decision on the merits of which the main appeal requests reversal – Scope of
CIVIL APPEAL – Cross-appeal – Cross-appeal against a decision that cannot be appealed immediately regardless of the decision on the merits – Admissibility – Cross-appeal against a decision other than the decision on the merits of which the main call requests reversal – Lack of influence
Applied texts:Articles 545, 550 and 551 of the Code of Civil Procedure