Title VIII: Of the Instance of Litigation

The beginning of the instance occurs by the joinder of issue; its end, however, occurs by all the ways by which judgment is terminated, but even before that it can not only be interrupted but also ended, whether by peremption or by renunciation.

If a litigating party dies, changes status, or ceases from the office by reason of which he acts:

1° If the cause has not yet been concluded, the instance is interrupted until the heir of the deceased or the successor renews the litigation.

2° If the cause has been concluded, the instance is not interrupted, but the judge must proceed to further things, the procurator having been cited if one is present, otherwise the heir or successor of the deceased.

If it is controverted to which of the litigating clerics the right to a benefice belongs, and one, while litigation is pending, dies or renounces the benefice, the instance is not interrupted, but the promoter of justice pursues it against the survivor, who contends for the liberty of the benefice or church, unless the benefice is of the free conferral of the Ordinary and he prefers to adjudge the cause as lost to the survivor.

When a procurator or curator ceases from his office, the instance remains interrupted so long as the party or those to whom it belongs have named a new procurator or curator, or have declared that they wish to act personally in the future.

If no procedural act, without some impediment obstructing, is placed in the tribunal of first instance for two years or in the grade of appeal for one year, the instance is perempted, and in the latter case the sentence attacked by appeal passes into a judged matter.

Peremption obtains by the law itself and against all, also minors and others equated to minors, and it must even be excepted from office, with the right of recourse for indemnity saved against tutors, administrators, and procurators who have not proved that they lacked fault.

Peremption extinguishes the acts of the process, but not the acts of the cause; indeed these can have force even in another instance, provided that it occurs between the same persons and concerning the same thing; but as regards outsiders, they obtain no other force except that of documents.

In a case of peremption, each one of the litigants is to bear those expenses of the perempted judgment which he has made.

§ 1. In any state and grade of the judgment the actor can renounce the instance; likewise both actor and defendant can renounce the acts of the process, either all or only some of them.

§ 2. In order that renunciation be valid, it must be carried out in writing and must be signed by the party or by his procurator, furnished however with a special mandate, communicated to the other party, and accepted by him, or at least not impugned, and admitted by the judge.

Once admitted, for the acts which have been renounced, it produces the same effects as peremption of the instance; and it obliges the one renouncing to pay the expenses of the acts which were renounced.