Dawson v. Dumont, (1891) 20 SCR 709

Supreme Court of Canada

Dawson v. Dumont., (1881) 6 SCR 30

Date: 1881-06-10

SIMON JAMES DAWSON

Appellant;

And

JEAN BAPTISTE ONÉSIME DUMONT

Respondent.

1891: Nov 6

PRESENT:—Sir W, J. Ritchie C.J., and Strong, Fournier, Taschereau and Patterson JJ,

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

Appeal—Jurisdiction—Action in disavowal—Prescription—Appearance by attorney Service of summons C S.L G ch 83 s 44. Parties to suit

In an action brought in 1866 for the sum of $800 and interest at 12½ per cent against two brothers S. J. D. and W. McD. D. being the amount of a promissory note signed by them, one copy of the summons was served at the domicile of S. J D at Three Rivers the other defendant W. McD. D. then residing in the state of New York. On the return of the writ the respondent filed an appearance as attorney for both defendants, and proceedings were suspended untll 1874 when judgment was taken and in December, 1880. upon the issue of an alias writ of execution, the appellant having failed in an opposition to judgment, filed a petition in disavowed of the 'respondent. The disavowed attorney pleaded inter alia that he had been authorized to appear by a letter signed by S. J. D., saying: "Be so good as to file an appearanse in the case to which the enclosed has reference, &c." and also prescription, ratification and insufficiency of the allegations of the petition of disavowal. The petition in disavowed was dismissed. On appeal to the Supreme Court of Canada the respondent moved to quash the appeal on the ground that the matter in controversy did not amount to the sum of $2,000.

Held, 1st. That as the judgment obtained against the appellant in March, 1874, on the appearance filed by the respondent, exceeded the amount of $2,000, the judgment on the petition for disavowed was appealable.

2nd. That there was i.e evidence of authority given to the respondent or of ratification by appellant of respondent's act and therefore the petition in disavowal should be maintained

3rd. Following McDonald v. Dawson (11 Q. L. E. 181) that the only prescription available against a petition in disavowed is that of thirty years.

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4. That where a petitioning in disavowal lists been served on all parties to the suit and is only contested by the attorney, whose authority to act is denied, the latter cannot on an appeal complain that all parties interested in the result are not parties to the appeal.

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) confirming a judgment of the Superior Court at Three Rivers, dismissing the petition in disavowal taken by W. McD. Dawson against J. B. C. Dumont, the respondent.

In 1866 an action was instituted by the tutor of Miss McDonald against the two brothers Simon J. Dawson and William McD. Dawson the present appellant. The action was for the recovery of the amount of a promissory note for $800, with interest at 12 ½ per cent dated on the 27th February, 1862, and payable on the 25th June of same year.

Simon J. Dawson was served with the summons at his domicile at Three Rivers on the 11th October, 1866, but W. McD. Dawson the other defendant, alleged that the summons was never served upon him and that at that time from 1864 to 1868 he had no residence in Three Rivers, but was residing in New York.

The summons was entered in court in 1866, and no other proceedings were taken until 1874, when the pupil, having become of age, was substituted to her tutor by reprise distance, and a judgment by default was entered against both Simon J. Dawson and W. McD. Dawson. It was only after this judgment that "W. McD Dawson was made aware of it by an execution issued against his goods and chattels.

Thereupon the W. McD. Dawson made oppositions to the judgment obtained against him; these oppositions were rejected except the last, which was maintained by a judgment of the Supreme Court of Canada ([1]) render-

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on the 12th January, 1885, and all proceedings in the cause and on the writ of execution were stayed until the decision of the Superior Court on the petition in disavowal was obtained. At the trial of the petition in disavowal, the following letter was produced as evidence of the authority of the respondent to appear for

W. McD. Dawson:

"THREE RIVERS

"MY DEAR SIR,—Be so good as to file an appearance in the case to which the enclosed has reference The matter is arranged for the present, but as I may not get to Three Rivers before the 25th so as to see Mr McDougall, it is necessary in the meantime to file an appearance, so as to prevent judgment going by default.

"I have been busy for some days past with Chaudiére matters hut I hope to get to Three Rivers to-morrow or Thursday evening.

"Truly yours

"S.J. Dawson."

By the return of the bailiff on the writ of summons it appeared that only one copy of the summons was served upon Simon J Dawson at his domicile at Three Rivers The petition in disavowal having been dismissed by the Superior Court, the judgment was confirmed by the Court of Queen's Bench for Lower Canada (appeal side).

After the hearing of the case in the Court of Queen's Bench and before judgment "W. McD Dawson died and S. J. Dawson, the present appellant, having obtained leave to accept the estate under benefit of inventory, was allowed to take the present appeal, reserving to the respondent any rights they might have acquired under certain proceedings theretofore taken.

The principal questions which arose on the present appeal were:—

1st. Was the ease appealable? .

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2nd. Has W. McD. Dawson ever been duly served with the original summons ?

3rd. Has Mr. Dumont ever been authorized to appear for W. McD. Dawson ?

4th. Can the appellant succeed in the present appeal inasmuch as all the interested parties are not represented, the writ of appeal having been served only on the respondent ?

Irvine Q.C. and Robertson for appellant.

McLean for respondent.

Sir W. J. RITCHIE C.J. This is an appeal from a judgment dismissing the petition in disavowal of Mr. Wm. McD. Dawson against Mr. Dumont, the respondent, who appeared for him in a suit brought against his brother and himself in the Superior Court at Three Rivers and in which a judgment was obtained in 1874.

Now it is not pretended that the respondent had any other authority than the letter which was addressed to Mr. Dumont by Mr. S. J. Dawson on the 22nd October, 1866, which is as follows:—

THREE RIVERS

Mr DEAR SIR,—

Be so good as to file an appearance in the case to which the enclosed has reference. The matter is arranged for the present, but as I may not get to Three Rivers before the 25th so as to see Mr. McDougall, it is necessary in the meantime to file an appearance, so as to prevent judgment going by default.

I have been busy for some days past with Chaudiére matters, but hope to get to Three Rivers tomorrow or Thursday morning.

Truly yours,

S. J. Dawson.

Now it is possible, inasmuch as he does not express it in so many words, that Mr. Damont might have considered and no doubt did consider that the letter gave him authority to appear for the two defendants, but even supposing it did give him authority, and that Mr.

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S. J. Dawson had given it in so many words, that would not get us a step further in the case, for we would then have to ask; Where does it appear that Mr. Dawson got the authority to name an attorney for his brother ? There is no evidence whatever of record; on the contrary the evidence is to the effect that he had not such authority. I cannot conceive how the courts below came to the conclusion that there was evidence that Mr. Dumont was authorized to appear in this matter.

Now the moment we have come to that conclusion the next question is whether there is any evidence of ratification by Mr. W. McD. Dawson. The only fact relied on is the evidence showing that when Mr. McD. Dawsen came to discover years after, and to his great surprise, that an execution had been taken out against him, he naturally went to inquire about this at the office of the prothonotary with Mr. Dumont. Now there is not a title of evidence that Mr. Dawson said to Mr. Dumont on that occasion either impliedly or expressly '. "You were right to appear but you should have pleaded,'' or that he ever gave his assent to what had been done. In my opinion it was natural for him to go and look after the judgment which so seriously affected his interests, yet we are asked to infer that he ratified the act which at that very time he was repudiating in every way he could.

As to the question of jurisdiction I cannot see how the objection can be urged if we had jurisdiction in the cases between the same parties that have already' been decided by this court.

Under these circumstances I am of opinion that the appeal should be allowed with costs.

STRONG J._I think it quite clear that there was no original authority given to Mr. Dumont, though Mr

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Dumont supposed that he was properly authorized by the letter of the 23rd October written by Mr. Simon J. Dawson at Quebec. This letter on its face is general in its terms, authorizing Mr. Dumont

To file an appearance in the case to which the inclosed has reference. The matter is arranged for the present, but as I may not get to Three Rivers before the 25th, so as to see Mr. McDougall, it is necessary in the meantime to file an appearance, so as to prevent judgment going by default.

Now construing the words in their ordinary meaning, and setting aside the relation of brother existing between the two defendants it would only refer to an appearance for the party who sent the writ, and wrote and signed the letter and there is no evidence that he either pretended to be or was authorized by his brother the defendant William McD. Dawson to write the letter. But granting that in so many words Mr. Simon J. Dawson had written, authorizing Mr. Dumont to appear for both defendants, where did Mr. Simon J. Dawson get authority to do that? Where is there the evidence of record that Mr. William McD. Dawson had authorized his brother to retain the ser-vices of an attorney for him ? Are we to say that the mere relationship existing between the two parties is enough? Surely not. There was therefore originally no authority to enter appearance for "William McD. Dawson.

Then as regards ratification we must expect Mr. Dumont would put the case as strongly in his favour as he possibly could and what does he say as to any subsequent recognition and confirmation of his authority by Mr. William McD. Dawson ? At p. 84 of the case we find the following evidence:—

I cannot say positively if William McDonnell Dawson, one of the defendants, had any knowledge of the appearance I filed in the case, but I know that in 1874 he was aware of it, having had occasion to speak of it to him, and having gone with him to the prothonotary's

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office of the Superior Court at Three Rivers to examine the record. in the case. Before that date I do not remember that I spoke of it.

There could be no ratification in this for how can Mr. William McD. Dawson be held to have then ratified the act of Mr. Dumont when we know from the record that at that very time he was opposing the judgment? The conversation might have been and probably was a series of objections on the part of Mr. William McD. Dawson. Therefore, so far as that goes there is no ratification. So that there is nothing of record by which it is proved or from which we can infer as a fact that the respondent was ever authorized to represent Mr. William McD. Dawson, or that the latter in any manner ratified his unauthorized proceedings. That being so, upon the merits the judgment appealed from was wrong exactly upon the ground taken by Mr. Justice Tessier in the Court of Queen's Bench that Mr "William McD. Dawson was never served with a copy of the summons nor authorized Mr. Dumont to appear for him.

As to the question of jurisdiction—-that question is concluded by the decisions of this court upon contestations of oppositions. I can draw no distinction between an opposition and a petition for disavowal. This is really a judgment in a judicial proceeding in which the question has been finally decided by the highest court of final resort in the province of Quebec, and the matter in controversy involves a sum of over $2,000, the amount fixed by the statute, so that the appeal is competent within the exact words of the statute.

Then as to the question of law which has been raised, viz., that of prescription, it was determined by the judgment of the majority of this court in the former case of Dawson v. McDonald ([2]) that under the Code

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of Civil Procedure and the ordinance of 1667 there is no other prescription or limitation to a petition for a disavowal than that of 30 years and I am bound to follow that decision.

There remains but the objection taken by the respondent's counsel that all the parties are not before this court on the present appeal. This is removed by what has been suggested by my brother Taschereau during the argument.

FOURNIER J. concurred in the observations of Strong J.

TASCHEREAU J.—No direct relief is asked against the original plaintiffs. All that is now asked is that a judgment may be pronounced which may be - an element in attacking the judgment which they still have in their favour. Then it appears also that this petition was served on all the parties, and if they chose not to contest it, but elected to allow the point to be decided upon a contestation between the appellant and the respondent, they are not now in a position to complain because they were not served with a notice of appeal. For these reasons the judgment of the Court of Appeal should be reversed, and a judgment entered in the Superior Court declaring the disavowal valid with costs in all courts.

PATTERSON J. The other members of the court being clear that we have jurisdiction I shall only say that I have not considered the point sufficiently to assent, but will not enter a dissent.

I think the real question is: Was Mr. Dumont authorized to appear for both defendants? I am scarcely prepared to say upon the evidence we have that he was. I am not prepared to hold that an appearance

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authorized by one brother a co-defendant is authority to appear for both. Whether the judgment obtained on the subsequent opposition does not put an end to the objection I have some doubt.

Appeal allowed with costs.

Solicitor for appellant : A. Roberston.

Solicitor for respondent : L. D. Paquin.