RS 27

anja amend-traut Chamber Court that both in appeals and in summary proceedings cum clausulanospecial appearance had tobe enteredbefore the Imperial Chamber Court: In appeals, the first instance proceedings already amounted to sufficient appearance, and in the summary proceedings the requirement of litis contestatiowas denied due to the urgency of the matter. “Given that the complaint has been drawn up and submitted in the aforementioned manner, it shall stay as it is and no variation shall be permitted.” (Da dann einmahl obangezogener Weise libelliret, soll es dabey gelassen und hernach keine Variation[…] gestattet werden.)72 After litis pendence – comparable to today’s pendency – has occurred upon entry of appearance, which initiates the judicial stage of the proceedings and describes the scope of the subject matter in dispute,73 a unilateral renunciation of the action was no longer possible.74 Given that in a lawsuit the claimant was after entry of appearance, by proof of his alleged right to sue, entitled to a conviction of the defendant and, correspondingly, the latter was entitled to dismissal of the claim in the event that the allegations could not be proven, a final judgment was generally required to formally end the proceedings. Even if after entry of appearance one of the two parties failed to appear, it was under Imperial Law only possible to conduct unilaterally the lawsuit or to suspend it.75 However, contemporary literature on procedural law held that the parties were also granted the option of reaching an agreement on dropping the pending lawsuit by joint motion. In such case, both the motive for with72 So according to the Common Order of 13 December 1593, quoted by Ludolff, Georg Melchior von 1724 p. 452-453, no. CCCXX. In this respect also Oestmann, Peter 2013 no. 92, p. 279. Different opinion expressed by Ludovici, Jacob Friederich 1750 34th Chap., sec. 28, p. 384. 73 As to the contestation of suit as a whole, see Schlinker, Steffen 2008. 74 As to lawsuits in general see in summary Zedler, Johann Heinrich 1732 vol. XLVIII, columns 225-226 with further substantiation, for Chamber Court proceedings Dick, Bettina 1981 pp. 146-147; Schlinker, Steffen 2008 pp. 218-219. Other provisions applied according to Saxon Law, cf. ibid. p. 438. Likewise, the later procedural law literature of the 18th and 19th century, cf. e.g. Bethmann-Hollweg, Moritz August von 1865 vol. 2, sec. 86, p. 216; Wetzell, Georg Wilhelm 1878 sec. 14, p. 126, sec. 46, p. 549. 75 Likewise inter alia Steinwenter, Artur 1925. However, this interpretation is objected to by Danz, Wilhelm August Friedrich 1800 sec. 459, p. 649, who provides for a “release from the instance” upon defendant’s application in the event of a default on the claimant’s part. On this subject, see also Dick, Bettina 1981 p. 192. 95

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