Municipal District of Beaver Dam (Defendant) Appellant;
and
Lillie Belle Stone and John Henry Ure, Administrators of the Estate
of Walter George Stone, Deceased (Plaintiffs) Respondents
1932: February 5, 9.
Present: Duff, Rinfret, Lamont, Smith and Cannon JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA
Appeal—Jurisdiction—Action for damages taken from jury at
trial and dismissed—New trial ordered by appellate court—Appeal by defendant to
Supreme Court of Canada—Whether any "amount in controversy in the
appeal"—Supreme Court Act, s. 39.
[Page 405]
At the trial of an action (in which plaintiffs claimed $20,000
damages) the judge, at close of plaintiffs' evidence, took the case from the
jury
[Page 406]
and dismissed the action. On appeal by plaintiffs, the
Appellate Division, Alta., ordered a new trial. Defendant appealed to this
Court. Plaintiffs contended that, there having been no finding of any amount,
there was no "amount in controversy in the appeal" (Supreme Court
Act, s. 39) and this Court was without jurisdiction.
Held, that the objection to the jurisdiction was not
well taken.
On the merits, defendant's appeal was dismissed.
APPEAL by the defendant from a judgment of the Appellate
Division of the Supreme Court of Alberta.
The action was brought by the administrators of the estate of
one Stone, deceased, for the benefit of the deceased's wife and son, for
damages (the amount claimed being $20,000) resulting from the deceased's death,
which plaintiffs alleged was caused by defendant's negligence. Plaintiffs
alleged that deceased died as the result of an accident which occurred when he
was driving a team of horses attached to his wagon, and that the accident was
due to the defective condition of a culvert within the defendant municipality.
The action was tried before Walsh J., with a jury. At the
close of the evidence for the plaintiffs, the judge, on motion by defendant's
counsel, took the case from the jury and gave judgment dismissing the action,
on the ground that there was nothing to establish any connection whatever
between the injury to deceased and the defective condition of the highway. On
appeal by the plaintiffs, the Appellate Division, Alta., allowed the appeal and
ordered a new trial. The defendant appealed to this Court.
Counsel for the respondents raised the question of the
jurisdiction of this Court, under the circumstances, to hear the appeal,
contending that, there having been no finding of any amount, there was no
"amount in controversy in the appeal" (Supreme Court Act, s.
39). This question was reserved along with the determination of the appeal on
the merits.
O. M. Biggar K.C. for the appellant.
Robert Ure for the respondents.
THE COURT.—The appeal should be dismissed with costs.
We have come to the conclusion that Mr. Ure's point as to
jurisdiction is not well taken. The necessary result of accepting the view
advanced by him would be that an.
[Page 407]
appeal from a judgment ordering a new
trial (on the ground that the trial judge has improperly taken the case from
the jury) is only permissible upon obtaining special leave under section 39. We
think we should be misinterpreting the intention of the Legislature if we ascribed
such effect to the amendments of 1920. Besides, the adoption of such a
construction would involve a reversal of the practice which has obtained since
those amendments came into force.
Appeal dismissed with costs.
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