Forms of appeal
Under the system of the cognitio extra ordinem the party who lost the case could appeal against the judge's decision (such an appeal was not possible under the formulary system).
An appeal from a lower to a higher court, or from a index pedaneus to the magistrate who had appointed him, was termed appellatio or provocatio?0 An appeal addressed to the emperor was termed supplicatio and was permitted only in cases of exceptional importance.[1212] [1213]The appeal process began with the submission by the party concerned of a notice of appeal (libellus appellationis) to the court which had issued the decision. Such a notice had to be given within two (biduum) or three (triduum) days[1214] (under the legislation of Justinian, within ten days)[1215] from the time the decision was published. In Rome and Constantinople appeals were usually heard by the praefectus urbi. Appeals against decisions of local courts were dealt with by the governor of the province (praeses provinciae) in which the court was situated. As was noted before, appeals against decisions of provincial governors were addressed to the vicarius or to the praefectus praetorio of the relevant diocese or prefecture, while appeals against decisions of the vicarii and the praefecti urbi were heard by the emperor. The decisions of the praefectus praetorio could not be appealed against, as in judicial matters the praetorian prefect was regarded as acting in the name of the emperor.[1216] Until the time of Justinian, both interlocutory and final decisions could be appealed against.[1217] As this could cause long delays in resolving cases, however, Justinian ruled that there could be no more than two appeals concerning the same case.[1218] Moreover, appeals against interlocutory decisions were no longer permitted. The appellate court either confirmed the decision of the lower court (in which case the appellant incurred certain penalties) or, if the appeal was accepted, quashed or altered that decision. In dealing with an appeal the higher court could consider additional evidence and assess new defences. A petition addressed to the emperor {supplicatio) was an extraordinary form of appeal usually raised against decisions of the praefectus praetorio which, as was said before, could not be appealed against in the regular manner. If the emperor accepted the appellant's plea, the case was returned to the praefectus praetorio for retrial.
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