Molson v. Barnard, (1891) 18 SCR 622

Supreme Court of Canada

Molson v. Barnard, (1891) 18 SCR 622

Date: 1891-02-26

ALEXANDER MOLSON (DEFENDANT, PETITIONER)

Appellant;

And

EDMUND BARNARD (PLAINTIFF CONTESTING PETITION)

Respondent.

1890: Nov 19; 1891: Feb 26

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—Saisie conservatoire—Judgment Ordering a petition to quash seizure to be dealt with at the same time as the merits of the main action —R.S.C. ch. 135, ss 24-28.

A judgment of the Court of Queen's Bench for Lower Canada (Appeal Side) reversing a judgment of the Superior Court, which quashed on petition a seizure before judgment, and ordering that the hearing of the petition contesting the seizure should be proceeded with in the Superior Court at the same time as the hearing of the main action, is not a final judgment appealable to the Supreme Court. R.S.C. ch. 135, ss. 24-28. Strong J. dissenting.

Appeal from a judgment of the court of Queen's Bench for Lower Canada (Appeal Side) ordering the case to be sent back to the Superior Court in order to enable the parties to proceed on the merits of the scisie conservatoire and of the respondent's claim at the same time. The proceedings in the case are fully stated in the judgments hereinafter given.

Doherty Q.C. for respondent moved to quash the appeal on the ground that the judgment appealed from was not a final judgment within the meaning of the Supreme and Exchequer Courts Act.

Robertson Q.C. and Laflamme Q.C. contra.

Sir W. J. RITCHIE C.J.—The judgment appealed from

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reversed the judgment of the Superior Court quashing a seizure before judgment taken by the plaintiff against the defendant on monies in the hands of the Prothonotary of the Superior Court, Montreal, and of the Provincial Treasurer. By his declaration accompanying the seizure the plaintiff claimed $3,932.17 for services as detailed in his account rendered to the defendant his wife and children and to protect the rights of the substitution created under the will of the late Hon. John Molson, and especially to save the sum of $13,712.50 which was seized in the cause.

The defendant took proceedings to quash the seizure on various grounds.

The Superior Court presided over by Mr. Justice Wurtele quashed the seizure

The Court of Queen's Bench reversed this judgment and ordered that the hearing of the petition contesting the seizure should be proceeded with at the same time as the hearing of the main action, and for this purpose directed that the petition should be joined to the said action to be decided at the same time as the merits of the action.

The respondent contends that no appeal will lie from this judgment, that, even admitting that the proceedings on the petition in question are judicial proceedings within the meaning of the Supreme Court Act in which an appeal would lie if the judgment on such proceedings were a final judgment, the judgment in question is in no sense final.

I am of opinion that the judgment in this case was in no sense final but the exact opposite. This case is not governed by any previous decision of this court, and therefore the appeal should be quashed.

STRONG J.—The appeal in this case is maintainable upon the authority of the judgment of this court in the

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case of Chevalier v. Gouvillier ([1]), and therefore the application to quash should be refused with costs.

FOURNIER J.—The judgment appealed from is clearly an interlocutory judgment and decides nothing. In my opinion it is not appealable.

TASCHEREAU J.—In this case the plaintiff, now respondent, issued a writ of attatchment by garnishment. The defendant, now appellant, protested the attachment by a petition. The Superior Court granted the petition and quashed the attachment. The Court of Appeal reversed that judgment, but without adjudicating upon the petition, or upon the respondent's right to a seizure before judgment, simply ordered that the merits of the proceeding and of the action should be tried together. It is from this judgment that an appeal is taken to this court. I am of opinion that we have no jurisdiction. The judgment appealed from is clearly not a final judgment; it is not a judgment at all upon the contestation between the parties. A fair test on appeals to this court, where the question arises whether the judgment of the court of Queen's Bench is final, or interlocutory, seems to me this: Would such a judgment if given by the Superior Court, have been an interlocutory judgment or a jugement preparatoire ? If the answer to this is in the affirmative, then the judgment given by the Court of Appeal is an interlocutory judgment or a jugement preparatoire and not a final judgment from which an appeal lies to this court. It cannot be that a judgment which would be interlocutory only if given by the Superior Court, is not of the same nature, in the case, because given by the Court of Appeal. The Court of Appeal may, when giving such an interlocutory judgment have to reverse a judgment

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which, if it remained unappealed from, would have been final, but that does not make the judgment of the Court of Appeal a final judgment so as to bring' it within the jurisdiction of this court. That is only the consequence of the decision they have come to to order an interlocutory or judgment di instruction, or rather the means to put the record in such a state that the interlocutory order may be given effect to. The judgment of the Court of Appeal deprived the present appellant of a judgment he had in his favor, it is true but it did not finally put an end to any matter in controversy between him and the respondent. It is equivalent to a judgment of preuve avant faire droit. Now, has such a judgment ever been held to be a final one ? It is evidently a "simple judgment preparatoire ou d'instruc-tion. Goldring v. La Banque d'Hochelaga ([2]), is a case where, on a similar petition, the appeal was refused. The Privy Council in that case held that a judgment rejecting a petition to quash a capias was an interlocutory judgment from which there was no appeal. I refer also to Molson v. Carter ([3]). In that case the Court of Appeal had affirmed the judgment of the Superior Court. But, if the Superior Court had granted the petition and quashed the capias, and if the Court of Appeal had reversed that judgment and rejected the petition, the result would have been the same and the Privy Council, I assume, would not have entertained the appeal. If interlocutory when confirming, it would not have been less interlocutory when reversing. Now, here, the appellant's case is a great deal weaker because his petition has not been dismissed but simply postponed for later adjudication. The appellant has invoked what he called, his constitutional right of appeal. Now there is no such right, nor any common law right of appeal. It is the creation of the statute

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and must be refused if not given in express or clear terms ([4]).

PATTERSON J. concurred that the appeal should be quashed.

Appeal quashed with costs.

Solicitors for appellant: Robertson, Fleet & Falconer.

Solicitors for respondent: Doherty & Doherty.