Kuwait Court of Cassation principle number 77

Summary: - A judgment granting a litigant some of his claims, or ruling for each litigant against the other on all or some of his opponent’s claims. Implication. Either litigant may appeal that judgment. Both appeals filed within the time limit without either appellant having accepted the first-instance judgment. Each appeal is an independent principal appeal. One litigant appeals the judgment. The respondent, in whose favor judgment was rendered, may, until the close of pleadings, file a cross-appeal responding to the principal appeal through the ordinary procedures or by a memorandum containing the grounds of his appeal. A cross-appeal filed after expiry of the appeal period or after acceptance of the judgment before the principal appeal was filed. The appeal in this case is considered an incidental appeal. It is dependent on the principal appeal and lapses when that appeal lapses. Article 143 of the Law of Procedure. - The second respondent filed an appeal against a judgment imposing a joint and several obligation upon it. The two appellants, against whom judgment was rendered jointly and severally with it, filed an appeal by a statement of appeal while its appeal was being heard. That appeal may not be regarded as a cross-appeal or incidental appeal within the meaning of Article 143 of the Law of Procedure. It is a joinder appeal under Article 134 of the Law of Procedure. The challenged judgment dismissed its principal appeal. Effect. The joinder appeal lapses. Reason: it is dependent on the principal appeal and lapses when that appeal lapses. Criticizing the judgment for misapplication of the law in ruling that their appeal was procedurally inadmissible on the basis that it was a principal appeal. Unavailing because the result is the same. Rule: If a judgment grants a litigant some of his claims, or rules for each litigant against the other on all or some of his opponent’s claims, either litigant may appeal that judgment. If both appeals are filed within the time limit and neither appellant has accepted the first-instance judgment, each is an independent principal appeal. If, however, one litigant appeals the judgment, Article 143 of the Law of Procedure permits the respondent, in whose favor judgment was rendered, until the close of pleadings, to file a cross-appeal responding to the principal appeal through the ordinary procedures or by a memorandum containing the grounds of his appeal. If the cross-appeal is filed after expiry of the appeal period or after acceptance of the judgment before the principal appeal was filed, the appeal in this case is considered an incidental appeal dependent on the principal appeal and lapsing when it lapses. That being so, the second respondent, the insurance company, and the two appellants are not considered to have judgment in their favor against each other and against them at the same time in a judgment imposing a joint and several obligation upon them. Rather, each is a judgment debtor in favor of the creditor, the first respondent in his capacity as agent for the victim’s heirs, the injured parties. It is therefore inconceivable that an appeal by one could constitute a defense to, and response to, the other’s appeal. Accordingly, a cross-appeal or incidental appeal may not be filed while the principal appeal brought by the other, the second respondent, is being heard. Whereas the latter filed an appeal against a judgment imposing a joint and several obligation upon it, and while it was being heard the two appellants, against whom judgment imposed a joint and several obligation from the latter, filed a statement appealing that judgment, this appeal is not a cross-appeal or incidental appeal within the meaning of Article 143 of the Law of Procedure. Since the challenged judgment adopted this view, it correctly applied the law. Whereas the correct legal characterization of the two appellants’ appeal is a joinder appeal within the meaning of Article 134 of the Law of Procedure, which provides that an appeal benefits only the person filing it and may be invoked only against the person against whom it is filed; however, where the judgment concerns an indivisible subject matter, a joint and several obligation, or an action in which the law requires specified persons to be joined, a judgment debtor who has missed the appeal deadline or accepted the judgment may appeal it while a timely appeal filed by a fellow judgment debtor is being heard, joining him in his claims,, since the judgment concerns a joint and several obligation. Nevertheless, it does not avail the two appellants to criticize the challenged judgment for erroneously holding their appeal procedurally inadmissible on the basis that it was a principal appeal filed out of time and otherwise than through the legally prescribed procedure. The aforementioned article expressly states that an appeal filed by a judgment debtor who missed the appeal deadline must be brought while the timely appeal filed by a fellow judgment debtor is being heard, joining him in his claims. This means that such appeal is dependent on the principal appeal and lapses when it lapses. That being so, and since the challenged judgment dismissed its principal appeal, the joinder appeal filed by the two appellants joining the second respondent in its claims consequently lapses, which is the same in result as a judgment declaring the appeal procedurally inadmissible.