LA CORTE SUPREMA DI CASSAZIONE
SEZIONI UNITE CIVILI
Composta dagli Ill.mi Sigg.ri Magistrati:
Dott. CARBONE Vincenzo - Primo Presidente -
Dott. ELEFANTE Antonio - Presidente di Sezione -
Dott. D'ALONZO Michele - Consigliere -
Dott. SETTIMJ John - Director -
GOLDONI Dr. Umberto - Director - Dr.
REMAINS 'Joseph - Director - Dr.
NAPPI Aniello - Director -
Bucciante Dr. Hector - Director -
Dr. Bruno Musso SPAIN - rel. Director -
gives the following:
ruling on the appeal brought by 5492-2009: CLINICA CASTELLI SPA ((omitted)), in its legal representative pro tempore, address for service in Rome, Piazzale CLODIO 1, at the Chambers of SEBASTIAN Ribaudo, who represents and defends the lawyer together with NOLA Lucille,
right delegation on the sidelines of the action;
- sought -
against
MANAGEMENT Liquidator USSL (OMISSIS )
- underwear -
against sentence no 1103/2008 of the Court of Appeal of Brescia, filed on 18/12/2008, heard the report of the proceedings held in public hearing on 24/11/2009 by Councilor Dr. ANGEL SPIRIT;
heard the Attorney Sebastian Ribaudo;
heard the PM in the person of Deputy Attorney General Ceniccola Dr. Raphael, who has applied for the appeal is accepted.
FACT OF THE PROCESS
The USL n. (Omission) of Bergamo proposed opposition against the decree that had been ordered to pay to the Clinica Castelli SpA of a sum of money constituting the consideration for medical services performed on behalf of USL same. The Court of Bergamo
welcomed the opposition and withdrew the injunction. The sentence was appealed by one Castles Clinic and the Court of Appeal of Brescia, office, said its lack of jurisdiction.
proposes appeal Clinic Castles by two reasons. Does not defend the other party to the proceedings of cassation.
LAW
GROUNDS
In the first plea, the applicant, referring to case law concerning the jurisdiction formed following the recent arrests of these sections together, is that the first court had implicitly ruled on the jurisdiction, deciding on the merits, and against this assertion of jurisdiction, the USL has not appealed. He had, therefore, made the point and held on the Court of Appeal could not pronounce office in point of jurisdiction.
The reason is well founded.
Since Cass. sect. a. October 9, 2008, No 24883, it is stated that the interpretation of art. Code of Civil Procedure 37 (according to which the lack of jurisdiction "is detected, even in the office, at any stage and level of process") must take into account the principles of procedural economy and of reasonable duration of process (backbone of the new reading of the standard) , the gradual assimilation of the strong issues of jurisdiction and competence of those dell'affievolirsi idea of \u200b\u200bjurisdiction as an expression of state sovereignty, since it is a service to the community with effective and timely for the realization of the right of the party to have a valid decision on the merits within a reasonable time. The outcome of this new interpretation of that provision, designed to outline the scope and strictly residual, has agreed to achieve that: 1) the lack of jurisdiction may be pleaded by the parties after the expiry of the period laid down ' art. 38 cod. proc. Civ. (Not after the first hearing of treatment), until the cause has not been decided on in first grade, 2) the sentence of the first grade can always be challenged for lack of jurisdiction, 3) the judgments of appeal have appeal for lack of jurisdiction only if the item has not formed a decided explicitly or by implication, estoppel, its working for the court's legitimacy, 4) the court may also detect the lack of jurisdiction of the office until the point has not formed a decided explicitly or implicitly.
In particular, the court implied jurisdiction may occur every time that the case is decided on its merits, except for the only decisions that do not contain rulings involving the assertion of jurisdiction, as if the only theme discussed was that relating to the admissibility of the application or when the grounds of the evidence showing that a solution has absorbed any other assessment (eg. for manifestly unfounded claims) and has led the court to decide the merits saltum for not respecting the logical progression established by the legislature to deal with the issues of ritual than of substance.
So that, in a case similar to that discussion now, it affirmed the principle (which should be reiterated here) because of which, when the Court of First Instance ruled on the merits, saying, implicitly, its jurisdiction and the parties have lent acquiescence, not on challenging the ruling in that regard, it is not possible to judge the next phase of its own motion impugnatoria the lack of jurisdiction, there is a question now covered by the deemed implicit (Cass. November 20, 2008, n . 27531).
In this case, as we have seen above, the court first upheld the opposition of the USL and withdrew the injunction issued in favor of the Clinic, implicit answer to the jurisdiction. The clinic has only challenged the ruling on the merit, with no mention of jurisdiction. As a result acquiescence of the parties on this point, the question of jurisdiction is res judicata and the Court of Appeal could not GIVE office (as was) in order to it.
The decision under appeal must be, therefore, quashed and the judge of the court, conforming to the above principle, will evaluate the merits of the case.
The second reason, which discusses in point of jurisdiction, is absorbed following acceptance of the first. Nothing for the costs of appeal because of the failure to establish the private parts.
PQM
While the Court's first ground of appeal, states absorbed the second case the decision under appeal and refer to the Court of Appeal of Brescia, in a different formation. Nothing for the costs of appeal.
Decided in Rome, November 24, 2009.
deposited at the Registry February 8, 2010
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