Service of the appeal to the opposing party; incidental appeal

Facts

This judgment deals with the service of the appeal to the opposing party for a written response pursuant to Art. 312 para. 1 CPC, as well as the incidental appeal pursuant to Art. 313 CPC.

The plaintiff had filed an appeal against a first-instance judgment. However, the High Court did not serve the plaintiff's appeal on the defendant for a response, but instead issued the judgment without prior service. The defendant then filed a complaint against this judgment.

Considerations

The Federal Supreme Court states that according to Art. 312 para. 1 CPC, the appellate court must serve the appeal of the opposing party for a written response, unless the appeal is obviously inadmissible or obviously unfounded. A mere preliminary examination is not sufficient for this, but the obviousness of the inadmissibility or lack of merit must result from a more detailed examination.

In the present case, the Federal Supreme Court considered it impossible for the High Court to have assessed all of the…