Hamel v. Hamel, (1896) 26 SCR 17

Supreme Court of Canada

Hamel v. Hamel, (1896) 26 SCR 17

Date: 1896-02-25

EUGENE HAMEL

Appellant;

And

AUGUSTE HAMEL

Respondent.

1896: Feb 18; 1896: Feb 25

PRESENT :—Sir Henry Strong C.J., and Taschereau, Gwynne. Sedgewick, King and Gwynne JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Appeal—Final judgment—Petition for leave to intervene—Judgment on— Interlocutory proceeding.

No appeal lies to the Supreme Court from the judgment of the Court of Queen's Bench on a petition for leave to intervene in a cause the proceedings being interlocutory only.

APPEAL from a decision of the Court of Queen's Bench for Lower Canada (appeal side), affirming the judgment of the Superior Court by which a petition by the appellant for leave to intervene in a cause before the court was dismissed.

A case of Hamel v. Hamel was pending in the Superior Court, the action having been brought by one executor of an estate to have the other removed. Eugene Hamel was brought into the cause as misencause and being desirous of taking proceedings for the removal of both executors he presented a petition to the court asking to be allowed to intervene in the cause. The court dismissed his petition holding that being already in the cause as mis-en-cause he could not come in as intervenant, but must bring a separate action for the relief he wished to obtain. The judgment dismissing the petition was reversed by the Court of Review but restored by the Court of Queen's Bench, and the petitioner having taken an appeal to this court a motion was made by respondent to have his appeal quashed.

[Page 18]

Drouin Q.C. for the motion. There is no appeal in this case. No amount is in controversy, and it is not a case which is appealable because future rights are involved. It is therefore exactly within the decision in O'Dell v. Gregory ([1]).

Moreover, the proceedings here were only interlocutory and there is no final judgment to appeal from.

Be court contra. The appeal is from a final judgment in a judicial proceeding which gives the court jurisd            iction. It is a special proceeding and not governed by the money limitation. See Ross v. Ross ([2]); Mitchell v. Mitchell ([3]).

The judgment of the court was delivered by :

GIROUARD J.— This is a motion to quash an appeal taken from the judgment Tendered by the Court of Appeal of the province of Quebec. The appellant filed a petition praying to be permitted to intervene in a case of Hamel v. Hamel, pending before the Superior Court at Quebec. It was allowed by Mr. Justice Andrews in the usual manner but the moyens or grounds of intervention were never furnished as preliminary issues were raised by the plaintiff in the original suit. He attacked the petition for permission to intervene by several pleas alleging more particularly that Eugene Hamel, the petitioner, who was already in the case as mis-en-cause, had no right to intervene, and that his petition should be rejected. To save costs the parties filed an admission of certain facts—

pour les fins de 1 issue sur la presents requête en intervention

and the following reservation was made

et le demandeur se reserve le droit de faire une preuve-contraire à ces .admissions, sur les moyens d intervention, si la dite requête est admise.

[Page 19]

The petitioner examined one witness, and the issue thus joined was argued before Mr. Justice Larue who dismissed the petition. The Court of Review reversed his judgment and allowed Eugene Hamel to intervene, and permitted " him to proceed to final judgment in the usual manner." The Court of Appeal reversed this judgment, and restored the judgment of the Superior Court.

All these judgments, it seems to me, are only of an interlocutor nature. The code of procedure of Quebec permits an appeal to the provincial courts from interlocutory judgment in certain cases, but the Supreme Court Act has not conferred the same jurisdiction upon this court. The policy of the Act is to prevent a multiplicity of appeals in the same instance and to limit our jurisdiction to final judgments only. The judgment appealed from is merely on a petition to be permitted to intervene, and is clearly interlocutory, and it is the well settled jurisprudence of this court that there is no appeal in such a case. The motion to quash is therefore granted with costs.

Appeal quashed with costs.