[소유권이전등기말소][공1994.12.15.(982),3231]
A. In a case where the plaintiff died in the first instance court without a legal representative and only a part of the inheritors have taken over and appealed from the lawsuit, whether the lawsuit is pending in the first instance court in relation to other inheritors
B. In the case of “A”, whether another successor in the case of “A” should request the first instance court to take over the deceased’s lawsuit.
C. Whether a person who has taken over a lawsuit at the first instance court can take over the lawsuit again at the appellate court
A. In a case where: (a) the Plaintiff at the first instance court, who was the Plaintiff, died during the lawsuit; and (b) only one co-inheritors, took over only the co-inheritors at the first instance court, and subsequently rendered a judgment by designating only B as the lawsuit receiver at the end of the trial; and (c) in a case where the first instance court, even though there was another person to take over the lawsuit, did not take the procedure of taking over the lawsuit even if there was another person to take over the lawsuit, the lawsuit in relation thereto shall be deemed to have continued to the first instance court
B. In the case of “A”, where the Plaintiff’s succeeding intervenor received a universal legacy from “A” and intends to take over “A, the court of first instance shall file a request for resumption with the court of first instance, and it is not possible to file a request for resumption with the appellate court of appeal in which the appeal case arising from Party B’s appeal is pending.
C. It is obvious that, if Eul had already taken the taking-over procedure at the first instance court, it would not be possible to take over Gap again at the appellate court.
(b) Article 211(b) of the Civil Procedure Act;
A. Supreme Court Decision 92Da29801 delivered on February 12, 1993 (Gong1993Sang, 969)
The plaintiff and the deceased non-party 1's successor to the lawsuit and the plaintiff
The intervenor succeeding to the plaintiff et al. and one other, the plaintiff and the deceased non-party 1's successor to the lawsuit and the plaintiff's successor to the lawsuit, and the plaintiff's successor to the lawsuit's non-party 1 et al.
Defendant’s Attorney Cho Jong-soo et al.
Busan High Court Decision 91Na15881 delivered on June 3, 1993
All appeals are dismissed.
The costs of appeal are assessed against the plaintiff and the succeeding intervenor.
The plaintiffs' grounds of appeal (the additional grounds of appeal filed after the expiration of the period are considered to the extent of supplement in case of supplemental appellate brief).
1. On the first ground for appeal
According to the records of this case, the non-party 1, who was the plaintiff of this case, died on August 11, 1990 on which the lawsuit of this case was pending in the court of first instance and did not have his attorney at the time (the appointment of an attorney-at-law who was an attorney of the court of first instance as the plaintiff of the above non-party 1, cannot be viewed as a legitimate attorney since it was September 6, 1990 after the death of the above non-party 1). Thus, the lawsuit of this case was interrupted immediately after the death of the non-party 1's claim.
However, in the first instance court, only the plaintiff and the deceased non-party 1's taking over the lawsuit and the plaintiff's succeeding intervenor take over the above non-party 1, and the first instance court rendered a judgment designating only the plaintiff, the deceased non-party 1's taking over the lawsuit and the plaintiff's succeeding intervenor as the taking over of the lawsuit. If the above non-party 1 did not take over the procedure even though there is any other person who will take over the above non-party 1, the above lawsuit shall be deemed to have been interrupted and it shall be deemed to have continued to the first instance court (see Supreme Court Decision 92Da29801 delivered on February 12, 1993).
Therefore, in order to take over the above non-party 1 on the ground that the plaintiff succeeding intervenor 1 and the plaintiff succeeding intervenor 2 received a universal legacy from the above non-party 1, the court of first instance must file a request for resumption with the court of first instance, and it is not possible to file a request for resumption with the court of first instance where the appeal case due to the appeal of the plaintiff, the deceased non-party 1 and the plaintiff succeeding intervenor is pending.
In addition, since the plaintiff and the deceased non-party 1's lawsuit taking-over and the plaintiff succeeding intervenor had already followed the taking-over procedure of the above non-party 1 at the court of first instance, it is evident that the appellate court cannot take over the above non-party 1 again at the court of first instance
Therefore, there is no need to further decide whether the court below should allow the plaintiff and the deceased non-party 1's successor and the plaintiff's successor's request for intervention in the court below as the request for succession of lawsuit.
2. On the second ground for appeal
According to the records, the court below's determination that there is no evidence to acknowledge the plaintiff's assertion that the deceased non-party 2 and the above non-party 1 trusted the real estate of this case to the defendant, and there is no violation of the rules of evidence, such as the theory of lawsuit. There is no ground
3. Therefore, all appeals are dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Chocheon-sung (Presiding Justice)