Acórdão nº 9650850 de Court of Appeal of Porto (Portugal), 26 de Maio de 1997
Magistrado Responsável | AZEVEDO RAMOS |
Data da Resolução | 26 de Maio de 1997 |
Emissor | Court of Appeal of Porto (Portugal) |
N Privacidade: 1 Meio Processual: APELAÇÃO.
Decisão: PROVIDO. REVOGADA A DECISÃO.
Indicações Eventuais: FOI PROVIDO O RECURSO PRINCIPAL E NEGADO PROVIMENTO AO RECURSO SUBORDINADO.
Área Temática: DIR CIV - TEORIA GERAL / DIR CONTRAT. DIR PROC CIV.
Legislação Nacional: CCIV66 ART1038 F. RAU90 ART64 N1 F N2 A. CPC67 ART201 N1 ART205 N1 ART446 N4 ART506 N2.
Jurisprudência Nacional: AC STJ DE 1976/06/25 IN BMJ N258 PAG216. AC STJ DE 1994/07/05 IN BMJ N439 PAG479. AC RL DE 1994/06/23 IN CJ T3 ANOXIX PAG138. AC RP DE 1978/05/09 IN CJ T3 ANOIII PAG833. AC RL DE 1979/10/09 IN BMJ N294 PAG391. AC RC DE 1994/06/23 IN CJ T3 ANOXIX PAG138. AC RE DE 1988/10/06 IN BMJ N380 PAG555.
Sumário: I - Em acção sumária de despejo, tendo sido apresentado pelos Autores, no articulado da resposta à contestação, um articulado superveniente, implicitamente admitido, mas não tendo a Ré sido notificada para apresentar resposta em 5 dias, há que considerar ter ocorrido uma nulidade processual secundária, nos termos do artigo 201 n.1 do Código de Processo Civil. II - Porém, como a matéria desse articulado foi incluída no questionário sem que a Ré apresentasse qualquer reclamação contra esse facto, a qual indicou várias testemunhas para serem inquiridas sobre essa matéria, tal nulidade, por não ter sido tempestivamente arguida, encontra-se sanada nos termos do artigo 205 n.1 do Código de Processo Civil, não podendo ser ressuscitada no recurso de apelação da sentença, pois não respeita a vício da sentença. III - Quando a resposta ao quesito é excessiva tem-se por não escrita na medida em que haja excesso...
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