Supreme Court of Canada
Montreal Park & Island Ry. Co. v. Labrosse, [1908] S.C.R. 96
Date: 1908-02-18
The Montreal Park and Island Railway Co. v. Labrosse Dit Raymond.
1908: February 18.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
Appeal — Jurisdiction — Amount in controversy—Retraxit—R.S.G. (1906) c. 139, s. 46(c). .
APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment entered in favour of the plaintiff, by Guerin J. in the Superior Court, District of Montreal, upon the findings of the jury at the trial.
The plaintiff brought the action for damages sustained through the death of her husband caused, as alleged, by the negligence of the defendants, and, by her statement of claim, demanded $ 10,000 damages. Issues were joined and the cause set down for hearing upon this demande; the trial being fixed for the 3rd of June, 1907. On 31st May, 1907, the plaintiff filed a retraxit reducing her claim to $1,999, and gave notice thereof to the defendants and that, at the trial, her claim would be limited to that amount.
By the findings of the jury contributory negligence was attributed to the deceased, but they also found that the accident which resulted in his death had been caused by preponderating negligence' on the part of the defendants, and, following the practice in the Province of Quebec the damages were assessed at $1,333, after reducing the assessment in proportion to the contributory negligence of the deceased. The trial
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judge ordered judgment to be entered accordingly in favour of the plaintiff, with costs, and this judgment was affirmed by the judgment appealed from.
On the appeal to the Supreme Court of Canada, the respondent (plaintiff) moved to quash the appeal on the grounds, (1) that the amount in controversy was only f 1,999, to which the retraxit had reduced the plaintiff's demande, and (2) that the case submitted to the jury and in the courts below and upon which the judgments therein had been rendered was one on a claim for $1,999 only, and, consequently, under the limitation provided by section 46(c) of "The Supreme Court Act," R.S.C. (1906) ch. 139, that the court was not competent to entertain an appeal.
After hearing counsel on behalf of the parties, the court allowed the motion and quashed the appeal with costs.
Appeal quashed with costs.
H. J. Elliott for the motion. R. A. Taschereau contra.
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