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BGE 20 I 26 ΓÇó Federal appeal inadmissible; wrong remedy and late filing
BGE 20 I 26Amtliche Sammlung des Bundesgerichts (BGE) / Band I06.03.1894Inadmissible
The Aargau Higher Court fixed attorney fees at CHF 217 in a moderation dispute involving the cessionary of the appellant and the heirs of Albin Oschger. Dr. Gäng sought to have the cantonal judgment annulled for allegedly applying the abolished Aargau tariff instead of federal obligations law. The Federal Court held that, because the complaint targeted the use of cantonal rather than federal law, the proper remedy would have been cassation, not appeal. It also noted that the submission was lodged after the applicable time limit. The court therefore did not enter into the matter.
Art. 89 OG, Art. 90 OG, Art. 182 OG; admissibility of the federal remedy and time limits for complaints against cantonal decisions. A party who complains that a cantonal authority applied cantonal law instead of federal law cannot use the ordinary federal appeal where the statute requires another remedy; the incorrect choice of remedy is fatal to admissibility. In addition, the extraordinary complaint mechanism under Art. 182 OG is subject to a strict sixty-day period, which must be observed; expiry of the term leads to non-entry irrespective of the merits. The Federal Court examines admissibility ex officio and refuses to hear filings that are both procedurally misdirected and out of time.