Rejection of the withdrawal of the appeal by the defendant after the remand by the Federal Tribunal

Facts

The dispute was between G. and D. The cantonal court of Appenzell Outer Rhodes had ordered G. to pay 48,720 CHF to D. G. appealed against this judgment, while D. filed a joint appeal. The higher court dismissed G.'s appeal and upheld D.'s joint appeal, ordering G. to pay 89,405.20 CHF.

G. appealed against this judgment to the Federal Tribunal, which partially upheld the appeal and remanded the case to the higher court. After the remand, G. declared the withdrawal of his appeal, but D. objected to it. The higher court ultimately ordered G. to pay 77,372 CHF to D.

Considerations

According to the consistent case law of the Federal Tribunal, when the challenged judgment is only partially confirmed by the remand judgment, the appeal cannot be withdrawn to the detriment of the opposing party who has filed a joint appeal. Indeed, the cantonal court is bound by the grounds of the Federal Tribunal's remand judgment, even if the latter has limited itself to a quashing without ruling on the merits.

Thus, G.'s withdrawal of the appeal was…