Facts
X. is the owner of a property, over which a right of way leads to an adjacent property of Y. On 25 April 2012, the District Court B. issued a precautionary measure decision at the request of X., prohibiting Y. from obstructing the passage on the access road. The District Court set X. a deadline of two months from the legal force of the decision to assert her claim in court. In the instructions on legal remedies, the District Court mentioned that the appeal would not suspend the legal force and enforceability.
On 6 July 2012, X. filed the lawsuit. However, the District Court did not enter into it, as in its view the two-month prosecution period had already started on 27 April 2012 and thus had not been observed. The High Court of the Canton of Lucerne dismissed X.'s appeal on the same grounds.
X. then filed a civil law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court had to clarify whether the appeal against the precautionary measure decision suspends the formal legal force or not. The cantonal courts as well as the respondent were of the opinion that the first instance decision had immediately become legally binding. X., on the other hand, argued that the appeal was in any case an ordinary legal remedy and therefore suspended the formal legal force.
The Federal Supreme Court followed X.'s argument. According to the prevailing doctrine, formal legal force sets in when a judgment can no longer be challenged by any ordinary legal remedy. The appeal constitutes an ordinary legal remedy according to the message on the CPC. Although part of the doctrine holds the view that the appeal becomes an extraordinary legal remedy in the law…