Facts
The case concerns proceedings for the collocation of a claim of the ancillary bankruptcy estate of Sabena SA in the probate liquidation of the SAir Group. District Judge Felix Ziltener has been handling this case as a single judge since the end of October 2006. On January 20, 2011, the appellant, the ancillary bankruptcy estate of Sabena SA, rejected District Judge Ziltener and requested that the District Court of Zurich decide the rejection request at first instance.
Subsequently, District Judge Ziltener referred the appellant's submission to the Cantonal Court of Zurich. The latter dismissed the rejection request by decision of March 17, 2011.
By civil law appeal of May 5, 2011, the appellant requested the Federal Supreme Court to annul the cantonal court's decision and to grant the rejection request. Alternatively, the matter should be remanded to the lower instance for the rejection request to be granted.
Considerations
The Federal Supreme Court did not enter into the appeal. It stated that according to Art. 75 para. 1 BGG, the appeal is only admissible against decisions of the last cantonal instance that are also higher courts and have decided as an appellate instance. However, the Cantonal Court had decided on the rejection of the District Judge not as an appellate instance, but as the first and only cantonal instance.
An exception to the requirement of two cantonal instances under Art. 75 para. 2 lit. a BGG could arise from the transitional law of the Swiss Civil Procedure Code (ZPO). However, the admissibility of legal remedies against interim decisions is governed by Art. 405 para. 1 ZPO, not by Art. 404 para. 1…