Acórdão nº 0006061 de Court of Appeal of Lisbon (Portugal), 11 de Maio de 1992
Magistrado Responsável | CARDONA FERREIRA |
Data da Resolução | 11 de Maio de 1992 |
Emissor | Court of Appeal of Lisbon (Portugal) |
(A), autora no processo de divórcio litigioso instaurado contra (B), reclama do despacho do M. Juiz do 3 juizo do Tribunal de Familia que lhe recebeu um recurso para subir com o primeiro que haja de subir. A reclamante pretende que o recurso suba imediatamente. Na fase dos articulados, a autora pediu que a Casa da morada de família lhe fosse atribuída "desde Já" (fls.20). O M. Juiz, em somador, indeferiu tal pedido, com base em que só seria viável, em processo de divórcio, a título provisório e de acordo com razões de urgência, que considerou não invocadas (f.21). O recurso em causa foi interposto desta decisão. A questão é discutível. Mas logo essa discutibilidade me aconselha a não inviabilizar o recurso, atento o disposto no art 689 n. 2 do CPC. A chave do problema poderá estar na distinção que sempre deve ser feito entre recurso e reclamação; entre âmbitos diferenciados daquele e desta. Com efeito ao decidir-se a reclamação, não se faz qualquer juizo sobre o mérito da decisão recorrida. E isto é, "in caso", especialmente importante. Com efeito, o que está em causa, aqui e agora, é, em mandado, uma medida que só tem cabimento e sentido euquanto provisória e urgente. Mas, se entrarmos a discutir se há, ou não, justificação concreta integrante desses conceitos, então estaremos a "julgar" a matéria própria do recurso, e não da reclamação. Independentemente do mérito do...
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