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APPENDIX

SAMPLE DOCUMENTS IN A CIVIL ACTION

In matters of form, the drafter of procedural documents makes liberal use of the great freedom provided by the Code of Civil Procedure. Consequently, the forms reproduced below are illustrative rather than typical.

A more varied collection of forms can be found in F ormulario della procedura civile, edited by M. Berri, G. Dallari, A. Lugo, G. Scarpello, and M. Stella Richter, and published by Giuffre in Milan in a revised edition.

Contents

1. Application for a Provisional Remedy. 425

2. Decree Granting a Provisional Remedy. 426

3. Citation in a Contract Action. 427

4. Power of Attorney and Election of Domicile. 429

5. Report of Service. 429

6. Note of Docketing. 429

7. Answer. 430

8. Processo Verbale of First Hearing. 433

9. Witness Subpoena. 435

10. Processo Verbale of Testimony. 435

11. Citation in a Proceeding to Validate a Foreign ]udgment. 438

SAMPLE DOCUMENTS IN A CIVIL ACTION 425

1. Application tor a Provisional Remedy

PRETURA OF FLORENCE

Complaint 01 Feared Damage

The undersigned, Bianco Bianchi, as the representative, pursuant to power of attorney at the foot of the present application, of Mr. Turco Turchi (who for the purpose of this proceeding elects domicile at the law office of Bianco Bianchi, in Florence, at 12 Via Salvestrina) alleges asfollows:

Mr. Turco Turchi is the owner of an apartment house in Florence, located at 50 Viale Alessandro Volta, which borders on the land of Mr. Greco Grechi.

Following arecent earthquake, the walls surrounding the lands of Mr. Greco Grechi have cracked in several places and at any moment may collapse entirely.

If that were to happen, the building of Mr. Turco Turchi would suffer great damage, as shown by the attached engineers' reports.

Mr. Greco Grechi has failed to shore up his walls despite repeated requests that he do so.

Wherefore, becausethe facts above described satisfy the prerequisites specified in article 1172 of the Civil Code, the undersigned makes a complaint against Mr. Greco Grechi of feared damage and

Applies

to the Pretore of Florence for the issuance of the orders necessary to obviate the impending damage.

The applicant indicates that the following can testify to the circumstances above stated:

I. 2.

The applicant attaches the following documents:

I. 2.

Florence, J an. 3, 1964. es] BIANCO BIANCHI

426 SAMPLE DOCUMENTS IN A CIVIL ACTION

I, the undersigned, Turco Turchi, authorize Bianco Bianchi to represent me in this proceeding and I elect domieile in his offiee at Via Salvestrina, 12.

Florence, J an. 3, 1964.

[s] TURCO TURCHI

The signature of Turco Turchi is authentie.

[s] BIANCO BIANCHI

2. Decree Granting a Provisional Remedy

THE PRETORE OF FLORENCE

having seen the above application based on a complaint of feared damage;

finding that, from the documents produced by Mr. Turco Turchi and from the summary information taken, the complaint is weH founded and the danger of damage caused by coHapse of the walls of Mr. Greco Grechi is imminent;

that, therefore, it is necessary to issue immediate orders to obviate the danger;

having seen artic1e 1172 of the Civil Code and artieies 689 and 690 of the Code of Civil Procedure

Decrees

that the wall be immediately shored up at the expense of Mr. Greco Grechi under the direction of Mr. Turco Turchi.

The Pretore sets J anuary 8, 1964, for a hearing and the appearance of the parties before hirn and orders that the applieation and this decree be served at the direction of the applicant, within 2 days from today.

Florence, J anuary 4, 1964.

[s] [THE PRETORE]

[s] [THE CLERK]


3. Citation in a Contract Action

CIVIL TRIBUNAL OF FLORENCE

Citation

The attorney, Bianco Bianchi, as the representative, pursuant to power of attorney at the foot of the present citation, of Mr. Andre Andrac (who for the purpose of this proceeding elects domicile at the law office of Bianco Bianchi, in Florence, at 12 Via Salvestrina) alleges as follows:

On August 10, 1962, a written contract was entered into between Andre Andrac and Rosso Rossi, domiciled at 202 Piazza deIla Liberta, Florence, pursuant to which Mr. Rossi undertook to furnish Mr. Andrac's villa at Fiesoie, for the price of 6,000,000 Lire. The contract specified the type of furnishings in detail as weIl as the number and types of rooms to be furnished and specified that delivery should be made at Mr. Andrac's villa no later than ]anuary 10, 1963.

At the ex pirat ion of the time agreed upon, delivery was not made, nor was it made in the following three months despite the repeated entreaties and demands made by Mr. Andrac by letter.

Mr. Andrac was therefore forced to apply to another furnisher, who on ] uly 10, 1963, delivered similar furnishings, but at a price of 8,000,000 Lire.

Pursuant to articles 1453, 1476, and 1223 of the Civil Code, because of the non-performance of the defendant's contractual obligation, Mr. Andrac has the right to termination of the contract and to damages.

Based on the above, the undersigned attorney Bianco Bianchi as the legal representative of Mr. Andre Andrac

Cites

~

Mr. Rosso Rossi before this Tribunal of Florence, in order that the tribunal adjudge that the contract of sale entered into between the parties on August 10, 1962, be terminated because of the defendant's breach of contract and in order that it be adjudged that the defendant pay to the plaintiff the damages he has suffered, wh ich are in the amount of 5,500,000 Lire, as weIl as the costs and legal fees of this proceeding; and


Invites Mr. Rosso Rossi to make an appearance at the time and in the manner provided by article 166 of the Code of Civil Procedure, with the warning that if he does not appear, he will be proceeded against in contumacia, and to appear at the hearing of December 3, 1963, before the examining judge who will be designated by the President of the Tribunal; and

Offers the following documents, filed in the clerk's office:

(1) Contract ·entered into between the parties on August 10, 1962 (doc. 1);

(2) Copies of three letters written by the plaintiff to the defendant, one of which by registered mail, return receipt requested (docs. 2-4);

(3) The return receipt of the registered letter mentioned in (2) above (doc. 5); and

Asks that, if it be necessary, testimony be taken as to the following issues:

(a) If it be true that Mr. Andre Andrac and his wife were unable to live in the villa owned by them, located at 158 Via deI Riposo deI Vescovo, until ]uly 10, 1963, because of a lack of furnishings. (The following are indicated as witnesses:

Mr. Verde Verdi, residing at 119 Via S. Niccolo, Florence; Mr. Nero Neri, residing at 256 Via deI Paradiso, Florence) ;

(b) If it be true that Mr. Andrac and his wife from ] anuary 10, 1963 to ]uly 10, 1963, for lack of a place to live in Italy had to stay at the Hotel Belgique at a daily rate of 10,000 Lire. (The following are indicated as witnesses:

Mr. ..... );

(c) If it be true that the furnishing of the villa was undertaken by another furnisher on ]uly 10, 1963, at a cost of 8,000,000 Lire, which was the market price at the time. (The following are indicated as witnesses:

Mr. ...... ).

Florence, October 10, 1963

[s] BIANCO BIANCHI


4. Power of Attorney and Election of Domicile

I authorize Bianco Bianchi to be my legal representative in this proceeding, and confer upon him all the powers provided for in article 84 of the Code of Civil Procedure and authorize him to arrive at a settlement of the case. I also elect domicile at his office at Via Salvestrina, 12.

Florence, October 10, 1963 es] ANDRE ANDRAC

I declare that the above is the true and authentic signature of Andre Andrac.

es] BlANCO BlANCHI

5. Report of Service

At the request of Mr. Bianco Bianchi, legal representative of Mr. Andre Andrac, who has elected domicile at 12 Via Salvestrina, in the office of his attorney Bianco Bianchi, I, the undersigned ufficiale giudiziario, attached to the Civil Tribunal of Florence, have served a copy of the above citation on Mr. Rosso Rossi domiciled at 202 Piazza della Liberta, Florence, in his horne on him personally, today, the 16th day of October, 1963.

es] ALBERTO ALBERT!

6. Note of Docketing


Note of docketing of the civil action brought by Mr. Andre Andrac, domiciled in Fiesoie and, by election, at 12 Via Salvestrina, Florence, at the law office of his attorney, Bianco Bianchi, who represents hirn pursuant to apower of attorney at the foot of the citation, plaintifl

against

Mr. Rosso Rossi, domiciled at 202 Piazza della Liberta, Florence, delendant.


The undersigned attorney, in the name, and in the interest of Mr. Andre Andrac, requests the docketing of this case, brought by him by means of a citation served on the defendant, Mr. Rosso Rossi, on October 16, 1963, by service upon hirn personally.

The relief sought is the termination of a contract to furnish a villa entered into between Andre Andrac and Rosso Rossi on August 10, 1962, and the payment of damages by Rosso Rossi.

The first hearing is set for December 3, 1963.

October 18, 1963 es] BIANCO BIANCHI

7. Answer


Answer

In the interest of Mr. Rosso Rossi, domiciled at 202 Piazza della Liberta, Florence, and, by election, at 48 Via Laura, Florence, in the office of Giallo Gialli, his attorney, who represents hirn by virtue of apower of attorney at the foot of the answer, detendant

against

Mr. Andre Andrac, represented by his attorney, Bianco Bianchi, plaintijj, in a case commenced by the plaintiff by a citation dated October 10, 1963, served on the defendant on October 16, 1963.

The defendant, represented by the undersigned attorney,

states

That, although the written contract of August 10, 1962, was silent on this point, the plaintiff, at the time of contracting, agreed to pay one-half of the purchase price within one week after the contract was signed, and that the plaintiff has failed to make or to offer such payment despite the defendant's demand made by registered letter on August 20, 1962.

Therefore, the defendant requests that he be permitted to introduce testimonial evidence on that point, and that, because of the plaintiff's


non-performance of his undertaking under the contract, the contract be terminated pursuant to articles 1453-1462 of the Civil Code.

In the event that this tribunal does not deny plaintiff's prayer for relief on the ground just stated, the defendant also states that, about two weeks after the contract between plaintiff and defendant was concluded, there occurred a sudden, extraordinary, and unforeseeable rise of 25% in the market price of the goods contracted for, making performance of the contract pursuant to its terms excessively burdensome to the defendant.

Thereafter on August 30, 1962, defendant, by registered letter, return receipt requested, wrote to the plaintiff offering to cancel the contract, to renegotiate the price, or to reduce the amount of goods to be furnished at his option. Although, as evidenced by the return receipt signed by hirn personally, plaintiff received this letter, he never replied to the specific terms of the letter, but instead, arrogantly and in bad faith, insisted that the defendant perform his part of the bargain and threatened that he would complain to the ambassador of the plaintiff's country to have the defendant placed on the Embassy blacklist as an untrustworthy merchant. Despite this libelous threat, the defendant has attempted to come to an agreement with the plaintiff, but to no avail.

Therefore, pursuant to article 1467 of the Civil Code, the contract should be terminated as excessively burdensome, and the defendant asks for a technical consultant to determine the excessiveness of the burden.

In the unfortunate event that defendant's right to a termination of the contract is not recognized, he nevertheless declares that the damages claimed by the plaintiff are excessive since the hotel expenses he demands were not the direct and immediate consequences of the breach of contract foreseeable at the time of contracting within the terms of articles 1223 and 1225 of the Civil Code and, as required by article 1227 of the Civil Code, could have been avoided by the use of ordinary diligence.

In view of the above, the defendant requests that the tribunal decide the following

C onclusions

That the Tribunal reject the claim of the plaintiff and order hirn to pay the costs, including legal fees, of the action, and declare the


contract terminated because of the plaintiff's non-performance, or, subordinately, because of supervening excessive burdensomeness.

That testimonial evidence be admitted to show that the plaintiff agreed at the time of contracting to pay one-half of the purchase price within one week after the contract was entered into.

That a technical consultant be appointed, if necessary, to determine that there was a sudden, extraordinary, and unforeseeable rise in the price of the goods contracted for.

In the unfortunate event that the court does not see fit to reject the plaintiff's claim in its entirety, the defendant requests that the damages awarded to the plaintiff be appreciably less than those requested, reserving the right to adduce testimony to prove that the plaintiff, by using ordinary diligence, could have secured goods of the kind contracted for immediately after the defendant refused to make delivery and could have avoided the hotel expenses claimed.

The defendant indicates the following witnesses:

1. Mr. Mirto Mirti, clerk in the defendant's store, residing at 327 Piazza deI Limbo, Florence.

2. Miss Rosalia Rosalie, clerk in the defendant's store, residing at 202 Piazza della Liberta, Florence.

He formulates the following questions on which evidence may be asked of the witnesses:

(a) "Is it true that on August 10, 1962, you saw and heard Mr. Andre Andrac and Mr. Rosso Rossi enter into a contract to furnish Mr. Andrac's villa?"

(b) "Is it true that at that time Mr. Rossi said, 'I must insist on one-half of the purchase price immediately,' and Mr. Andrac replied, 'I will give it to you in one week: to which Mr. Rossi said 'that is more than satisfactory' ?"

The defendant offers the following documents:

(1) Copy of registered letter of August 20, 1962, sent by defendant to plaintiff;

(2) Return receipt for letter described in (1); (3) Copy of registered letter of August 30, 1962, sent by defendant

to plaintiff; (4) Return receipt for letter described in (3).

Florence, November 24, 1963.


I delegate Dr. Giallo Gialli to represent me in the present ease, and eonfer upon hirn all the powers provided for in article 84 of the Code of Civil Proeedure, and authorize hirn to enter into a settlement of the ease. I also elect domicile at his office at 48 Via Laura, Florence.

[s] ROSSO ROSSI

Florence, Nov. 24, 1963

I declare the signature of Rosso Rossi to be true and authentie. [sJ GIALLO GIALLI

8. Processo Verbale of First Hearing

TRIBUNAL OF FLORENCE

1st Civil Seetion

Processo verbale of the first hearing in the ease of Mr. Andre Andrae, represented by Mr. Bianco Bianehi, plaintiff and Mr. Rosso Rossi, represented by Mr. Giallo Gialli, defendant.

Prayer for Relief: Termination of eontraet and damages.

In the year 1963, on the 3rd day of the month of Deeember at 10 : 30 A.M., before Dr. Pinto Pinti, judge appointed by deeree of the President dated November 20, 1963, to proeeed with the proof-taking of this ease, with the assistanee of the undersigned clerk, appears Mr. Bianeo Bianehi, attomey for the plaintiff and Mr. Giallo Gialli, attomey for the defendant.

The judge, having noted that both parties had duly made their appearanees, asks the attomeys whether they eonsider it opportune to eall for the personal appearanees of the parties for an attempt at settlement. The attomeys state that, for the moment, there is no possibility of settlement.

The plaintiff's attomey insists upon the relief of termination of the eontract based on the defendant's breaeh and on all other relief requested in the eitation. Furthermore, he asks that the testimony requested in the answer by the defendant not be heard beeause, (1) when a contract of sale is silent as to time of payment, it is to be made upon delivery, and (2) testimony may not be heard that is intended to


prove an agreement that is made simultaneously with, and contradicts, or is supplementary to, a written contract. But, in the event the court finds this testimony admissible, he requests that rebuttal testimony be taken to show that plaintiff never agreed to pay any part of the purchase price before delivery. He, therefore, formulates the following questions for testimonial evidence:

(1) "ls it true that on August 10, 1962, you saw and heard Andre Andrac and Rosso Rossi enter into a contract forfurnishing Mr. Andrac' s villa? "

(2) "ls it true that at that time Mr. Andrac said that 'I will pay you on delivery' and Mr. Rosso replied 'certainly, that is more than satisfactory' ? "

He indicates as a witness who can testify upon these questions. Mr. Roberto Roberti, residing at 232 Viale Galileo Galilei, Florence,

The defendant's attorney insists that his requests for proof-taking be gran ted and that the testimony proposed is not to show an agreement that contradicts, or is supplementary to, a written contract, but is rather intended to clarify the true meaning of the writing and to prove fully a contract that is only in part written.

The attorney for the defendant also insists that a technical consultant be appointed as requested in the answer, in the event that the testimony does not conclusively prove his allegations.

The examining judge holds that, since the document of August 10, 1962, signed by the two parties is silent as to the date on which payment of the price should have been made, testimony on this issue may be admitted, since it is not a fact that is supplementary or contrary to the contents of the document, but only evidence intended to clarify and interpret the contents of the written contract.

Since a1l other proof-taking may prove unnecessary if the proof on the issue of the time when part payment should have been made is favorable to the defendant, the examining judge, having seen art. 187, 4th paragraph, and art. 202 of the Code of Civil Procedure and art. 102 of the Disposizioni di attuazione,

Orders

that the testimonial evidence relating to the contracted time for the payment of the purchase price, as specified in the answer and in this processo verbale may be taken. The following witnesses will be heard: Mr. Mirto Mirti, residing in Florence, at Piazza deI Limbo, 327; Miss


Rosalia Rosalie, residing in Florence, at Piazza della Liberta, 202 (witnesses named by the defendant); Mr. Roberto Roberti, residing in Florence, at Viale Galileo Galilei, 232 (witness named by the plaintiff). He sets the hearing of J an. 7, 1964, at 10 :00 A.M., for the commencement of proof-taking, before him in this court, holding each party responsible for the speedy summoning (intimazione) of his own witnesses.

es] PINTO PINT! (judge)

es] SALVO SALVI (clerk)

9. Witness Subpoena

TRIBUNAL OF FLORENCE

On this 27th day of December, 1963, at the request of the attorney of Mr. Rosso Rossi, in the case pending between hirn and Mr. Andre Andrac, I, the undersigned utticiale giudiziario, attached to the Tribunal of Florence, have summoned Mr. Mirto Mirti, residing at 327 Piazza del Limbo, Florence, to appear on the 7th day of January, 1964, at 10 :00 A.M., at the hearing that will be held by Dr. Pinto Pinti, examining judge of the Tribunal of Florence to be heard as a witness in the aforesaid case, warning hirn that, by not appearing, he will incur the penalties provided by art. 255 of the Code of Civil Procedure.

es] ALBERTO ALBERT!

10. Processo Verbale of Testimony

Proof-taking hearing of Jan. 7, 1964, before Dr. Pinto Pinti, examining judge in the case of Andre Andrac against Rosso Rossi, the attorneys for the parties appear for the taking of the testimony requested by plaintiff and defendant, admitted by ordinanza, dated December 3, 1963. Mr. Andre Andrac is also personally present.

The examining judge, having noted the witness's subpoenas, served under the direction of the attorneys for the parties, orders that the examination of the witnesses be commenced.

The first witness adduced by the defendant is introduced and warned by the examining judge of the religious and moral importance


of the oath and the penal consequences of false or reticent statements; then the examining judge invites him to take the oath and reads the formula: "Conscious of the responsibility which by the oath you assurne before God and men, swear to tell the truth, nothing but the truth." The witness standing, says the words: "I so swear." 1nterrogated on his identification, he answers: "I am Mirto Mirti, born in Siena on August 15, 1941, residing at 327 Piazza deI Limbo, Florence, and a clerk in the store of Rosso Rossi."

At the request of the judge, the witness states that he is not related by blood or marriage to either of the parties, and, although he is employed by the defendant as a clerk, he is not interested in the case.

The attorney for the plaintiff alleges that the witnes's' testimony is suspect because of his employment by the defendant.

The judge, taking note of the aforesaid, questions the witness on the items of proof. On the first item formulated in the defendant's answer, he replies : "It is true. I was present when Mr. Andrac and Mr. Rossi made their agreement."

On the second item, he states: "I cannot, in good conscience, give a precise answer." Upon questioning by the judge, he clarifies his answer by stating: "I was busy in the store with another customer and, although I heard generally what was said, I didn't hear all the specific details. The only thing on the point I can state with certainty is that, soon after Mr. Andrac left, I heard Mr. Rossi and Miss Rosalie speak of the fact that the client had agreed to pay one-half of the price within a week."

There being no further questions to put to the witness, he is released after the reading to and confirmation and signature by, hirn of this verbale.

Read, confirmed, and signed. es] MIRTO MIRTI

[The second witness is introduced and the processo verbale indicates in the same manner as jor the jirst witness the swearing in and identitication oj the witness.]

The attorney for the plaintiff alleges that, since the witness is an employee of the defendant and lives at the same address as the defendant, her testimony must be looked at with great suspicion. Moreover, he observes, he understands that the defendant is her godfather.

The defendant's attorney comments that the above remarks involve


insinuations that are completely unjustified. Miss Rosalie lives at that address with her family and is a person worthy of respect and belief. Upon questioning by the judge, she states that she has no personal interest in the case and she will not hesitate to tell the wh oIe truth although Mr. Rossi is her employer, neighbor, and godfather.

The examining judge, having noted the above, questions the witness on the items of proof formulated in the defendant's answer. On the first, she replies : "Yes, I was present throughout the transaction. " On the second, she answers: "Definitely, Mr. Andrac said he would pay one-half within one week."

The attorney for the plaintiff asks the judge to ask the witness in what language Mr. Andrac and Mr. Rossi spoke and how well she knew that language.

The judge puts the question. She replies : "The conversation was in French; I have studied that language at schoo!."

The attorney for the plaintiff asks permission to test the witness' knowledge of French by having Mr. Andrac, who is present, ask her some questions in French.

The judge denies the request stating that the attorney may ask for the appointment of a technical consultant to determine whether she was capable of understanding the conversation in question.

[The reading to, conlirmation by, and signature 01, the witness is recorded, tollowed by the questioning 01 the third witness and the reading to, conlirmation by, and signature 01 the third witness.]

The attorney for the defendant requests an adjournment of three weeks to prepare new requests for proof-taking. The attorney for the plaintiff does not object.

The examining judge

sets

a hearing for the 28th day of ]anuary, 1964, at 10 : 00 A.M., before hirn in this court for the parties to make their requests for further proof-taking.

[5] PINTO PINTI (judge)

[5] SALVO SALVI (clerk)


11. Citation in a Proceeding to Validate a Foreign Judgment

COURT OF APPEAL OF FLORENCE

Citation

The attorney, Bianco Bianchi, as the representative pursuant to power of attorney at the foot of the present citation, of Mr. joseph Smith (who for the purpose of this proceeding elects domicile at the law office of Bianco Bianchi, at 12 Via Salvestrina, Florence) alleges as folIows:

That on December 1, 1962, in the Supreme Court, County, Cityand State of New York, United States of America, Mr. joseph Smith, a resident for ten years in New York, N. Y., at 162 West 62nd Street, obtained judgment against Mr. Cino Cini, residing in Florence, at Via Dante, 21, in the amount of 5,327,300 Lire for non-performance of a contract to deliver leather gloves.

Since the plaintiff has an interest in obtaining the validation of the aforesaid judgment in Italy, since that judgment meets the prerequisites of article 797 of the Code of Civil Procedure, and since the defendant owns property within the territory of this court upon which the plaintiff intends to obtain execution, he

cites

Mr. Cino Cini, residing in Florence, at Via Dante, 21, to appear in the Court of Appeal of Florence on February 26, 1964, before the examining judge who will be designated by the first president of the Court of Appeal of Florence and invites him to make an appearance at least five days before that date in the manner provided by article 166 of the Code of Civil Procedure, with the warning that if he does not appear, he will be proceeded against in contumacia.

The plaintiff will ask the court to declare the aforementioned foreign judgment to be effective in I taly.

The plaintiff offers the following documents, filed in the clerk's office:


(1) Authenticated copy of a judgment, dated December 1, 1962, of the Supreme Court of New York.

(2) Papers in the action in the Supreme Court of New York.

Florence, J anuary 3, 1964. [s] BIANCO BIANCHI

[H ere will appear the usual power 0/ attorney with election 01 domicile (form 4), authenticated by plaintiff's lawyer.]

INDEX

A

Absence From proceeding, consequences,

176-177 Contumacia distinguished, 297 Declaration of See Missing Persoos

Actioos and Defenses Answer, 169 Azioni costitutive, 152-153 Burden of proof, See Burden of

Proof Change of parties, 127 Class suits, 124-125 Classification of actions, 146 Coercive relief, 146, 148-152 Commencement of action, See

Citation Declaratory judgment, 147-148 Defenses, See Defeoses Derivative actions, 124-125 Historical background, 145-146 Impleader, 125-127 Intervention, 125-127, 266 Intervention, Pubblictil ministel'o,

function, 128-129 Introductory stage See Civil Pro

cedure, Introductory stage Joinder of actions, 88-89, 102, 103,

106, 154-155, 171 Joinder of parties, 125-127, 169 Modification of status or relation

ship, 152-153 Proof taking stage See Civil Pro

cedure, Proof taking stage Real party in interest, 123-124 Roman and common law compared,

30 Stages, generally, 144-145

See also Civil Procedure Statement of facts, 155

Adjudicating Panel See also Judges Composition, 242, 269 n. 90, 281 n.

189 Oral argument prior to decision,

242-243,281 Procedure and deliberations prior to

judgment, 241-243 A~trativeCouns

Actions against public administration, 111-114

Actions between private parties, 114 Judicial powers of administrative

bodies, 112-114 Administrative Law

Judicial review of administrative acts, 111-114

Admission to Practice, 57-58 See also Legal Education, Practice

ofLaw Admissioos

As legal evidence, 190, 199-202 Formal interrogatories to obtain,

27, 28, 202-204 Informal interrogatories, 228

Adoption Aliens in the courts, 90 Foreign adoptions, recognitionrules,

380, 386-389 Aediles,5 Agents See Power of Attomey AUeos

Foreign legal persons as, 92-93, 122 In Italian courts, 85-92 In proceedings to levy execution,

90, 332-333, 337 Legal capacity and representation,

118-120

INDEX 441

Appeals See Attacks on Judgments Appearance

After dec1aration of contumacia, 300-301

Belated, 300-301 Entries of, 166-167 Failure to appear, consequences

thereof, 167, 297-304 Failure to appear in appellate

proceeding, 303 Limited or special appearances, 168 Regularity checked, 177 Rights of parties in contumacia to

appeal, 302-303 Arbitration

Aliens, 91-92 Awards, opposition, 364-365

revocation, 365-366 rules for, 363-364

Controversies not arbitrable, 361, 390

Convention of 1961, Italy & U.S., 95, 389 n. 117

Foreign awards, 92, 389-390, 392-393

Geneva Protocol, 95, 392-393 Rules and proceedings, 361-363 Treaty of Commerce and Navigation

Italy & U.S.S.R., 95 AssociatioDS, 121-123 Attachment See also Sequestration

Exemptions of personal property, 330-331

Movable property, 330-332 Procedure in liquidation, 325-327

Attacks on Judgments Appeals,

adjudication de novo, 256, 263 competence of appellate courts,

263 dismissal, 267-268, 269-270 discontinuance, 317 impact on res judicata, 258 partial judgments, 264-265 reforms of 1942, 45, 264-265 reforms of 1950, 46, 265 Romano-canonical law, 35 rules, 258-261, 263-270 time limitations, 259-260, 265

Errors on the face of judgment, 261-262

Ordinary and extraordinary distinguished,258

Remand, from appellate court, 269-270 from Corte di cassazione, 281-285

Review in the Carte di cassazione, application and service, 276-279 costs, 283 generally, 270-283 grounds, 274-276 in the interests of law, 273 judgments, 281-283 proceedings, 279-281 questions of law and fact, 276, 280 review of partial judgments, 273 See also Corte di Cassa:done

Revocation grounds, 286-290 rules of procedure, 291-292

Third party opposition, 2<)3-296 Attomeys See Practice of laws;

AV1Iocato: Procuratore Auctoritas Rerum Similiter Judi

catarum, 272 Aviation

Aliens in the courts, 92 Avvocato See also Practice of Law

Appointment as judges, 75 As representatives of parties, 116-

117 A vvocato dello stato, 64-65 Funcations, qualifications and

practice, 54, 56-59 Income and social status, 63 State and private practice, 65

Bailiffs, 79 Bankruptcy

B

Dec1aration of, as sequestration, 143 Foreign, 371-372

Bar AssociatioDS, 59-60 Bench and Bar, 63, 77 Burden of Proof

Burden of allegation related to, 187-189

Pleadings related to, 187-189 Rules conceming, 185-187

C

Capacity Aliens, competency in the courts,

118-119

442 INDEX

Bankrupts, 118-119, 371-372 Citizens, 117 Criminals, 118 Declarations of incompetency, 356-

357 Foreign corporations, 122-123 Insane and mentally infirm, 118-120 Limitations, 117-119 Minors, 118-119

Captains of Ports As special courts, 114

Case Law See also Stare Decisis Bibliography, 49-51

Censors,4 Certified PubUc Accountants, 67 Chiovenda, Giuseppe, 41-44 Citation See also Claims; Service of

Process Defects, consequences, 165-166 In appellate procedure, 263-264 In revocation procedure, 290 In third party opposition procedure,

296 Requirements, 154-156 Service of, 157-163, 260 Service of, consequences, 163

Civil Procedure (Courts of First Instance) See also Medieval ltaUan Procedure Bibliography, 51-53 Code development f,om 1865 to

1942,41-44 Code of 1865, 40--41 Decision stage, 241-251 Discontinuance See Discontinuance Failure to compIy with procedural

ruIes, consequences, 163-165, 274-275

History, 25-46 Interruption of proceedings See

Interruption Introductory stage, 144-172

answer, 169 appearances, 166-168 citation, 154-166 designation of judge, 172 files, 171-172

Modern developments, 41-46 Orality, development of concept,

39-41, 45-46 Proof-taking stage, 173-240

added and modified claims and defenses, 177-180

comparse conclusionali, 180 evidence, 180-240 exchange of briefs, 180 first hearing, 176-180 judicial notice, 184-185 trattazione, 176-180

Reforms beginning in the Middie Ages, 37-46

Rules, development of, 46-48 Suspension of civil proceedings See

Suspension Unification under Louis XIV, 37

Claims Accessory cases, 102 Modifications, 155, 177, 179, 265-

266 Statement of, in citation, 155 VaIue, to determine competence,

101-102 Clerks of Courts, 78-79 Coercive ReUef

Actions for, 146, 148-149 CoUateral Estoppel, 254 Comitia, 3, 7 Competence of Courts

Accessory civil suits to criminal cases, 102-103

Collateral findings, 103-104 Conciliatori, subject matter compe

tence, 99 Constitutional, 81-82 Courts of appeal as courts of first

instance, 101 Issues regarding, procedure, 108-

109, 258, 262-263 J urisdiction compared, 80 Pretori, subject matter competence,

100 See also Pretori

Subject-matter competence, faHure to exercise, 107-108; rules of, 99-104

Territorial, 105-107 deviations, 106-107 failure to exerdse, 107-108

To enforce judgments, 324-325, 334, 336

Tribunals, subject matter competence, 100-101

Various forms of, 81-82 Complains See Citations Complains of Feared Damage and New

Work,136

INDEX 443

Concilliatori See Courts Condominium, 125-126 Conftict of Laws, 93-94

See also International judicial Assistance

ConsigUo Superiore della Magistratura Appointment of judges, 70-74, 76 Disciplinary action by, 78

Constitutional History, 16-17 Constitutional Law, 17-24, 46-47,

109-111, 114, 143 Consuls, 3-4 Continent Fees See Practice of Law Contumacia See Absence; Ap-

pearance, Failure to appear Corporations

As parties, 121 Foreign, as aliens by analogy, 92-93

as parties to actions, 122-123 Corpus Juris Civilis, 8-9 Corte di Cassazione See also Attacks

on judgments As court of last resort, 270-273 Excessive case load, 257 For disciplinary action, 60 Issues of competence in, 108-109,

262-263 Organization and general functions,

69, 72-73 fTocedure, 270-285 Pubblico ministero, functions in, 65,

273, 279, 281 Review of appellate judgments,

270-285 Unification, 257, 271

Corte Suprema di Cassazione See Corte dl Cassazione

Costltuzldne in Giudlzio See Appearance

Costs, 247-249, 283, 292 Council of Ministers, 21-22 Counterclaims, 104, 169 Court Calendar, 172 Court Records See Files; Records Courts See also Administrative Courts;

judges Administrative organs as special

courts 112-114 Cancellieri (clerks), 78 Conciliatori (small claims), 69-70, 99 Constitutional, 69, 73, 109-110, 273

judges, 75-76

Corte Suprema di Cassazione See Corte di Cassazione

Council of State as court, 113-115 Court of Accounts, 273 Courts of appeal, 72 See also Attacks

on judgments Ecclesiastical See Ecclesiastical

Courts General judicial structure, 23 Legislative review of special courts,

115 Military courts, 72, 114-115 Organization of, 68-74 Pretori See Pretori Provincial administrative juntas as

special courts, 113 Small claims (conciliatori), 69-70, 99 Special courts, cases against the

state, 73, 111-115 functions, generally, 73

Tribunals, 70-72, 100-101 Utticiali giudiziari (marshals), 79

Creditors' Rights, 326, 327-328 See also Bankruptcy; Enforcement

of judgments Criminal Law

Roman law, 5 Criminal Procedure

Accessory civil actions, 102-103 Secrecy, rules of, 220-221

Cross Examination No right of, 183, 224-225 Roman law compared, 28

D

Damages, 101, 148-152 Decedents' Estates, 87-88, 359 Decemvlri, 2 Decision Stage See Civil Procedure,

Decision stage Decisory Oaths See Oaths Declaratory judgment, Actions for,

147-148 Default See Absences; Appearances,

Failure to Appear Defenses See also Actions and Defenses

Discontinuance, 313 Exceptiones tacti, 188-189 Exceptiones juris, 188-189 Pleading of, 169, 177, 188-189,

265-266 Res judicata, 251-255

444 INDEX

Statute of limitations, 188 Desertion and Non-Support

Aliens,88 Temporary support orders, 142,

355-356 Dictators, Roman law, 3-4 Discontinuance

As a defense, 313 Cancellation as first step toward, 313 Enforcement proceedings, 341-342 Failure to perform procedural act

resultingin, 313-314 Generally, 312-317 Withdrawal of action, 312-313

Disqualification See Judges Divorce, Recognition, 378-380 Documentation See Records Documents, Service of foreign in Italy

See International Judicial Assistance

E

Ecclesiastical Courts, 109 Matrimonial cases, 115 Recognition of judgments of, 115,

394-395 Enforcement of Judgments

Attachment, 325-327, 330-332 Consegna ° rilascio, 333-335 Creditors' rights in liquidation pro-

ceedings, 327-328 Distribution of proceeds of liqui

dation, 329-330 Enforceability, 249-250, 319-321 Espropriazione jorzata, intervention

of other creditors, 326, 327 Forced sale of immovable property,

332 Liquidation of assets, 323-330

by sale or assignment, 328-329 Mandatory or restraining orders,

341-342 Opposition proceedings, 337-340 Precept, 321-323, 334 Provisional, 141,249-250 Specific enforcement by delivery,

333-335, 337 Suspension and discontinuance of

proceedings, 341-342 Titoli esecutivi, 319-320, 327

Equity, 244-245 In common law and Roman law,

29-31

Errors See Attacks on Judgments Espropriazione See Enforcement of

Judgments Estinzione See Discontinuance Estoppel, 254 Evictions See Special Proceedings Evidence

Admissibility, 189-190 as issue before adjudicating panel, 181,242 in Romano-Canonical procedure, 35-36 obtained by illegal means, 22 1-222

Admissions, 190, 199-204, 228 Circumstantial, 212, 214-215 Disconoscimento, 193, 194-195 Documentary See also International

Judicial Assistance as carrying greater weight than witnesses' testimony, 181-182 as conclusive, 190-192 falseness, burden of proof, 193-

196 private writings, 192-198 production and inspection, 199,

234-238 public acts and writings as con

clusive, 191-192 reproductions and copies, 197 special contestation procedures,

193-196 special weight attached to, 190-

191 taxation and registration of, 199,

305 telegrams, 196-197

Evaluation, 32, 34-36, 38, 189-190, 215

Expert, 230-234 For foreign state, letters rogatory,

402-405 Giudice istruttore, function in taking,

174-176 Inquisitorial nature of proof-taking,

182-184 Limitations of judicial power, 183 Methods of taking, 180-181

See also Civil Procedure, Proof-taking stage

Napoleonic code reforms, 38-39 Oaths, decisory, 190, 204-211 Orality, development of, 39-41, 45 Pre-trial, 130, 138-139

INDEX 445

Production of evidence, 234-238 Proof-taking stage of action, 173-

240 Pl'ova legale, 190 Pl'ova libel'a, 190, 125 Questioned documents, 193-194 Reforms under German and Austri-

an codes, 39-40 Rules for taking, 238-240 Statement in citation, 155 Testimonial, 215-224

See also Testimony Tl'attazione compared, 176, 180-181 Written contrasted with oral of

Roman and comman law, 26-27, 32,36

Written, requirement, 198 Execution See Enforcement of Judg

ments Expenses See Costs

F

Fact Issues of, relative insignificance, 182 Review in higher courts, 265-266,

276,280 Fair Play, 156-157, 248 Fascism

Effect on procedural developments, 43-44

Fase Decisorla See Civil Procedure, Decision stage

Fees See Costs; Practice of Law Files See also Records

Appellate proceedings, 267 Rules of docketting and filing, 171-

172 Foreign Legal Persons See Aliens Forms

Samples of documents used in civil actions, 424-439

Forum Non Conveniens, Doctrine, 107

G

Gaius, 2, 25 Gauetta Ufficiale, 49, 50, 409, 410 Gludice Istruttore See Judges Giudi:do de Deliba:done, 381-384 Glurlsdl:done See also Competence

Administrative, 111-114

Aliens, 85-92, 95 Ambiguities and confusion in, 80-81 Competence distinguished, 81-83, 99 Corti di cassazione, decisions on, 108-

109, 257, 272-273 Foreign legal persons, 92-93 In enforcement proceedings, 332-

333,337 In pel'sonam action, 83-84 Indirect, 81 Issues regarding, procedure, 98-99 ]udgment of adjudicating panel in

matters of, 241, 247 ]udicial jurisdiction defined, 80-81 Lex 'Mi as governing, 93-94 Limitations by agreement, 95 Power over citizens, 85 Rules, 82, 85-98

Giurlsdi:done Voluntarla, 90-91, 352-359 Foreign judgments involving, 386-

389 Glusta Parte, 123-124 Government, 16-25 Guardians, 119-120

See also Minors

History Italian, 1-16

H

Italian civil procedure, 25-46

I

Impugna:doni See Attacks on judgments

Insanity, 118 Institutiones, 2 International Cooperation in Litigation

See International Judicial Assistance International Judicial Assistance, 396-

423 Evidence taken abroad, 416-420 Non-official tangible evidence, 406, 420-421 Proof of foreign law, 421-423 Proof of foreign official records, 421 Proof of Italian law, 409-411 Proof of official documents, 409-411 Proof -taking for foreign proceedings,

402-407 Recognition of foreign judgments,

367-395

446 INDEX

Service of foreign documents in Italy, 398-402

Service of I talian documents abroad, 412-416

Interrogatories Comparative functions in legal

systems, 27 Evidentiary functions of, 27 Formal interrogatories to obtain

admissions, 202-204, 228 Informal, manner and functions,

227-230 Under Code of 1942, 45

Interruption, 308-312 Suspension distinguished, 308 Termination, procedure, 311-312

lntimazione, 349-350 Irnerius, 33 lstruzione Probatoria See Evidence

J joinder of Actions See Actions and

Defenses joinder of Parties See Actions and

Defenses Judex See judges judges See also Courts

Adjudicating panel of See Adjudicating Panel Appointment, 70, 74, 76 Apprenticeship, 74 Categories, 74 Civilliability, 77 Civil service judiciary, 77 Competitive examinations, 75 Constitutional court, 75-76 Corruption, 76, 78 Discipline, 76 Disqualification, 77-78 Duty to remit case to adjudicating

panel. 174, 179-180,241-242 Examining judge See judges,

Giudice istruttore Giudice istruttore, powers and

functions, 173-176, 179-180 J udex of the Romano-canonical

system, 32, 36, 41 Judex of the Roman system, 27 J udicial independence, 76 Lay experts, 71 Opposition to French Revolution, 38 Promotions, 74-75

Salaries, 77 Selection, introductory stage of

action, 172 judgments

Activities of court after proof-taking 241-243

Appellate, 269-270 Attacks on See Attacks on judg

ments Ecc1esiastical, matrimonial matters,

115,370,394-395 recognition of, 380, 394-395

Enforceability, 249-250 See also Enforcement of judg

ments Enforcement proceedings See

Enforcement of judgments Filing, rules of, 246 Foreign, arbitration awards, 389-

390 matrimonial 374, 378-380 money judgments, 375 non-contentious judgments and

orders, 386-388 official acts and negotiable

instruments, 390-391 public policy in recognition of,

378-380 recognition, 120,367-395 recognition as international ju

dicial assistance, 396-397 recognition, in ecc1esiastical

matters, 370, 394-395 recognition, history and theory,

367-369 recognition treaties, 391-394 retaliatory rules, 375 same claim in Italian courts,

rules, 377-378 validation, effects, 385-386 validation, proceedings, 381-384 validation requirement, 367-369 validation rules, 371-373, 376-377

Merger of giurisdizione and compe-tence, 84, 99

Money judgment, limits, 245 Of the Corte di Cassazione, 281-283 Partial, 247, 273-274 Remand See Remand Rendered by adjudicating panel,

174-176, 179-180, 184 Revocation procedure, See Revoca

tion

INDEX 447

Rules of drafting and rendition, 243-244, 246

Service of, 246 Stays of execution pending review,

250,279 Judicial Council, 75 Judicial Opinions, 243-246 J udicial Review

Administrative acts, 111-114 Constitutionality of legislation, 109-

110 Executive acts, 111-114 J udgments See Attacks on judg-

ments Jurisdiction See Giurisdizione Jus Civile, 29-32 Jus Commune, 25, 32-34, 37 Jus Honorarium, 29-32 Jus Praetorium See Jus Hono

rarium; Praetors Jus Quiritium, 2

L

Lateran Concordat, 378-380, 394 Law, Issues of, 182, 276, 280 Law Offices, 60

See also Practice of Law Lawyers See Practice of Law;

Avvocato; Procuratore Legal Aid, 64 Legal Education, 54--59, 182 Legal Fictions, 29-30 Legal History See History Legal Persons, 121-123 Legal Practice See Practice of Law Legal Scholars, 33-35, 55-56 Legis Actiones, 2 Letters Rogatory, 402-407, 416-420

Requests for tangible evidence, 406-407, 420-421

Limitation of Actions See Statute of Limitations

Liquidation See Enforcement of Judgments

Lis Pendens Continenza, 107 Domestic, 107 International, 97-98 Partial, 107 Provisional remedy compared, 141

Logal Government, 23-25 Longobards See History

M

Magistrate, Roman Law, 3 Malpractice, 60 Maritime Problems, 92 Marriage See Matrimonial Actions Marshals, 79, 157-162, 401 Matrimonial Actions

Aliens in the courts, 90 Annulment and separation, 115,355 Matrimonial property, 358-359 Recognition of ecclesiastical judg-

ments, 115, 370, 394--395 Recognition of foreign judgments,

378-380 Ministero Pubblico See Publico

Ministero Minors, 118-119,358,370,388, 411 Missing Persons, 357, 358 Money Judgments, 148-152, 211, 245,

375 Most Favored Nation Clauses, 397-398

N

Napoleonic Codes, 38-40 National Association of Magistrates, 75 Negotiable Instruments, 320

Foreign, 390-391 Notaio See also Evidence, Documenta

ry, public acts Admission, 58-59, 66 Compared with other systems, 54 Economic and social status, 66-76 Examinations, 57 Fees,63 Functions, 6~7

Notaries See Notaio; Practice of Law

o

Oaths Of a party,

admissibility, 205-206, 208 as legal evidence, 190, 204-211 challenges to, 207-208 estimation of money judgments,

211 perjured, 209 refusal to swear, 210 tax evasion, 209

Of a witness, 226, 403

448 INDEX

Obligaüons Aliens in actions concerning, 88

Opposisione di Terso See Third Parües

Orality See Adjudicating Panel; Civil Pro

cedure; Evidence; Testimony Ordinansa, 45, 175-176, 179-180,

239,242 To discontinue enforcement pro

ceedings, 342 To discontinue proceedings, 314-315 To order suspension of proceeding,

306 Ordine (Guild) See Bar Associaüons Ordonnance Civile of 1667, 37-40

P

Parliament,17-21 Parües to Acüons, 116-129

Third parties, 125-127, 169-170 See also Third Parües

Partnerships, 121 Paternity,

Competence of courts, 103-104 Presumption of, 213

Patricians, 2 Perjury

Damages due to, 209 False party oaths, 209 False testimony, 227, 403-404

Pleadings See Citaüon; Acüons and Defenses

Plebeians, 1-6 PoliücalOrg~aüon, 16-25 Power of Attorney

Agent of alien in Italian court, 86-87 Authority to act for principal, 123 Lawyers, requirement of, 116-117 Under international treaty, 397-398

Pracüce of Law See also Avvocato; Procuratore; Notaio Attorney-client relationship, 61-63 Clerkship, 57-58, 77 Dottori commercialisti (accountants),

67 Fees,62-63,247-249

See also Costs Foreign lawyers, 67-68 "Honorific and obligatory" duty, 64 Non-franchised lawyers, 67-68 Partnership, 60

Referrals, 61 Retainers See Pracüce of Law, Fees Specialization, 61 State attorneys, 64

Preators, 4, 29 See also Roman Law

Precedent, 49-50, 72, 272 Precept

In enforcement proceedings, 321-323,334

Prescripüon, Presumpüve, 214 See also Statute of Limitaüons

President, 22 Presumpüons

Circumstantial evidence, 212, 214-215

Conclusive, as substantive, 213 Death, presumption of, 357-358 Legal and simple differentiated,

212-213 Legal presumptions, examples, 213 Prescription, 214 Rebuttable, as procedural, 213

Pretori See also Courts Accessory cases, 102 Appellate powers, 263 Arbitration proceedings, 91-92, 364 Carrying out letters rogatory, 403 Cases involving voluntary juris-

diction, 353 Competence in paternity cases, 103 Discontinuance orders, 342 Enforcement proceedings, 324, 334,

336, 339 Functions, generally, 70, 100 New work and feared damage

actions, 137 Possessory proceedings, 351-352 Sequestration proceedings, 134 Urgent relief applications, 140

Pre-trial See also Civil Procedure, Introductory stage Activities of lawyers and clients, 130 Interrogatories, 27 Preservation of evidence, 138-139 Provisional remedies, 131-143

Privileges and Immuniües Diplomatie immunity, 96-97 Refusal to testify permitted, 219-

221, 404 Sovereign states, 96

Procedural Rules See Civil Procedure Procedure See Civil Procedure

INDEX 449

Procuratore As representative of parties, 116-117 Differentiated from other systems,

54 Functions and qualifications, 56-57 State and private practice, 65

Professional Secrecy See Practice of Law, Attorney-client relationship

Professors See also Legal Education As judges, 75 Legal practice, 60

Proof-Taking See Civil Procedure; Evidence; Trattazione

Property, Provision al Sealing and Inventory, 141 See also Enforcement of judgments;

Special Proceedings Prosecuting Attorney See Pubblico

Ministero Provisional Remedies, 131-143

Complaints of new work and feared damage, 138-139

During suspension, 307 Foreign proceedings, 411 International aspects, 132 Provision al execution, 141, 249-250 Security for costs, 142-143 Separation, 142 Sequestration, 132-136 Temporary support, 142 Urgent relief, 139-140

Pubblicazione See judgments, Filing Pubblico Ministero

As prosecuting attorney, 65, 128-129

Function in Corte di cassazione, 129,273,279,281

Function to apply for revocation of judgment, 289

Powers and duties in proceedings, 128-129

Public Officials, 60-61

Q

Questors,5 Querela di Falso, 193-194

R

Raccolta Ujjiciale delle Leggi e dei Decreti, 409

Real Party in Interest See Giusta Parte

Records, 78-79, 239, 407-409 See also Files; International judicial

Assistance Regolamento di Competenza, 108-

109, 258, 262-263 See also Attacks on judgments

Relief See Remedies Remand, 256, 269-270, 281-285

Procedure on, 284-285 Remittance of Case to Adjudicating

Panel See Civil Procedure, Decision stage

Representation By counsel, 116-117 Corporations, 121-122 Of persons lacking capacity, 119-120 Political divisions as parties, 121 Unincorporated associations, 121-

122 Remedies See also Provisional

Remedies Availability and statement of, 144 Coercive relief, 146, 148-149 Declaratory judgments, 146-148 Election of, 153-154 Equitd, 244-245 General judgments prior to deter

mination of specific damages, 151-152

Judgments as sanctions for future violations, 152

Modification of legal relationships, 152-153

Relief, rules of, 245-246 Summary relief, 150, 344-352

Res Judicata Actions barred by, 253-255 As bar to issues of giurisdizione or

competence, 184 Effect of appeals on, 258 Effect of review in the Corte di

cassazione, 281 Effect on third parties, 293 Effects of a judgment, 249-255 Formal See Res Judicata, Substantial and Formal In dismissed appeals, 268 Persons affected, 252-253 Substantial and formal, 251-255

Revocation, 285-293 See also Attacks on judgments Grounds for, 286-290 Rules of procedure, 291-292

450 INDEX

Right Legitimate interest contrasted, 112

Rimessione in Termini, 302-303 Roman Law, 1-9,26-36

Criminal,5 Procedure, 5, 26-36 Sources, 5

Romano-Canonical Procedure See Medieval Italian Procedure

S

Search and Seizure Admissibility of evidence obtained

illegally, 221-222 Secrecy

Privilege, rules, 219-221 Professional secrecy, 61, 220-221 Trade secrets, 220

Settlements, 179 Sentenza See judgments Separation See Matrimonial Actions;

Special Proceedings Sequestration

Property of alien, 89 Provisional remedy, 132-136

Service of Process and judicial Documents, 157-163 Abroad, 159 After appearance, 167 At elected domicile, 159 By mail, 161 By personal delivery, 158 By publication, 162 Consequences, 163 Defective service, consequences, 166 Legal times, 162 On legal persons, 160-161 On merchant seamen, 161 On military personnei, 161 On persons not found, 160 On the state, 160 Presence no basis for giurisdizione,

84 Proof of service, 162 Servers, 79 Substituted service, 158 See also International judicial As

sistance Upon foreign request, 398-399

Set-Off and Counter-Claim, 104, 169 Spaventa, Silvio, 112

Special Proceedings Decedents' estates cases, 359 Eviction proceedings, 348-350 Examination of records, 360-361 Incompetency, declarations, 356-

357 Involving exercise of voluntary

jurisdiction, generally, 352-255 Marital Separations, 355-356 Matrimonial property adminis-

tration, 358-359 Partition of property, 360 Possessory proceedings, 350-352 Presumptions of death, declarations

of,357-358 Regulating affairs of minors and

incompetents, 358 Release from mortgage or lien, 360 Summary ex parte proceedings, 150,

344-348 Summary proceedings generally, 150

344-352 Specific Performance See Remedies;

Enforcement of judgments Stare Decisis, 49-72, 272 Stay ofProceedings See Discontinuance

Interruption; Suspension State's Attorney See Avvocato Statute of Limitations, 250-251

As a defense, 188 Effect of service of process on, 163

Succession, Aliens' Rights, 87-88 Summary Proceedings See Special

Proceedings Summons, 156

See also Citation; Service of Process Suspension See also Interruption

Appellate proceedings, 307 Enforcement proceedings, 341 Grounds for, 304, 306 J udgment res judicata, 305 Sospensione concordata or volontaria,

304 Sospensione necessaria, 304

T

Taxation False oaths to evade, 209 Imposta di registro, non-payment,

305 Testimony See also Evidence;

Witnesses

INDEX 451

Admissibility, 215-219 Examination of witnesses, 28, 226 Expert evidence See Evidence,

Expert Illegally obtained evidence, 221 Interrogatories, informal, 227-230 Orality, principle violated, 222 Powers of examining judge, 224-226 Privileges, 219-221

foreign, 404 Rules of, 216 Weaknesses in method of taking, 222

Third Parties See also Actions and Defenses; Creditors' Rights Opposition procedure, 293-296 Parties to actions, 125-127, 169-170,

266 Res iudicata, effect on, 252-253, 293

Titoli Esecutivi, 319-321 Trattazione, 176-180, 268 Treaties

Affecting letters rogatory, 419-420 Arbitration convention, U.S., 95 Commerce and Navigation, U.S.,

397 CommerceandNavigation, U.S.S.R.,

95 Geneva Protocol, 1923, 95 Hague Conventions, 400, 402 International judicial assistance,

399-401 Italian-British treaty for judicial

assistance, 399-400, 402, 405 Lis pendens, 97-98

Recognition of foreign judgments, 391-394

Service of I talian documents abroad, 414-415

Trial See Civil Procedure, Proof-taking stage

Tribunals See Courts Tribunes, 4

See also Roman Law

U

Ufficiali Giudiziari See Marshals Unincorporated Associations, 121

v Venue See Competence of Courts

W

Witnesses See also Evidence; Testimony Competency, Roman law compared,

28-29, 35 Compulsion to appear, 225-227 Examination, methods, 28, 226

See also Interrogatories International judicial assistance,

402-406, 416-420 Out of court contracts, 130, 181 Party control of, 183, 223-227 Relative insignificance of testimony,

182

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