ISTANZA. – This is a term used in procedural law with two different meanings. I., also outside canonical terminology, in fact denotes any request or petition addressed to the judge, during the proceedings or even before them, except only those for which a particular form is prescribed and which have specific names, such as, for example, the summons, the libellus, or the appeal. By means of i., one requests that the judge, after the presentation and admission of the libellus, summon the other parties in order to proceed to the formulation of the issue; likewise, by means of i., new evidentiary means are requested, and so forth.
Far more important in canon law is the second meaning: i., or rather, i. of the suit (cf. CIC, bk. IV, part I, tit. VIII De litis instantia) is the progress and development of the case from the joinder of issue to its conclusion through the judge’s decision, by means of the taking of evidence. Fundamental in this regard is can. 1732: “the i. begins with the joinder of issue; it ends in all the ways by which the trial is concluded, but it may also be interrupted beforehand, or may subsequently lapse through expiration or withdrawal.”
The i. is divided into two distinct and defined phases: the first, the evidentiary phase, in which all the evidence is gathered and which ends with the publication of the acts and the conclusion of the case, and in which the judge’s action is predominant; the second, in which the briefs of defence are drawn up and submitted and the judgment is issued. The prerequisites of the i. of libellus (v.), summons (v.), and the joinder of issue (v.); its consequence is the determination of the case. Normally the i. ends with a definitive judgment, but it may also end through a settlement (v.), an arbitration agreement (v. ARBITRATO), oath (v.). In this way the suit reaches a conclusion and the case receives a decision. But the i. may also end without a decision having been rendered in the case; this occurs when there is expiration or withdrawal. There are also cases, exhaustively listed, in which the i. does not end but is interrupted. Interruption takes place by operation of law when, during the proceedings, one of the two parties to the case dies, loses the capacity to appear in court, or, if acting not in his own name but by virtue of an office, ceases to hold that office. It should be noted that the i. is interrupted only when the proceedings are still in the evidentiary phase; if the acts have already been published and the case concluded, the i. continues its course after the judge has summoned ex officio the heir or successor. Another case of interruption of the i. occurs when the procurator or curator ceases to hold office. The i. resumes, from the point at which the cause of interruption occurred, through the action of the heirs or successors, or when the party has appointed a new procurator or curator, or declares that he wishes to appear in court personally. An exception to the general rule exists in cases involving a dispute between clerics concerning the right to a benefice: despite the death of one of the parties, the i. is not interrupted, but must be continued by the promoter of justice, unless the benefice is freely collated by the Ordinary and he prefers to award the case and the benefice to the survivor. While, as already stated, the normal way in which the i. ends is by judgment or by one of the forms replacing it, the i. may end through expiration (v.) or withdrawal (v.); the former takes effect by operation of law as a result of the parties’ procedural inactivity; withdrawal is an act of the plaintiff, which achieves the purpose of bringing the i. to an end only if it is accepted by the defendant and admitted by the judge.