Martin v. Moore, (1891) 18 SCR 634

Supreme Court of Canada

Martin v. Moore, (1891) 18 S.C.R. 634

Date: 1891-03-11

Charles William Martin (Defendant) Appellant;

and

James Stewart Moore (Plaintiff) Respondent.

1891: March 11.

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

ON APPEAL FROM THE SUPREME COURT OF THE NORTH WEST TERRITORIES.

Appeal—Application to judge in chambers to set aside a writ of summons—Final judgement.

Application was made to a judge in chambers to set aside a writ of summons served out of the jurisdiction of the court on the grounds that the cause of action arose in England and the defendant was not subject to the process of the court, and if the court had jurisdiction that the writ was not in proper form. The judge refused the application and his decision was affirmed by the full court.

Held, Gwynne J. hesitante, that the decision of the full court was not a final judgment in an action, suit, matter or other judicial proceeding within the meaning of the Supreme Court Act, and no appeal would lie from such decision, to the Supreme Court of Canada.

APPEAL from a decision of the Supreme Court of the North-West Territories([1]) affirming the ruling of a judge in chambers, who refused to rescind for irregularity an order for service of a writ out of the jurisdiction and to set aside the writ.

The plaintiff resided in the District of Alberta and the defendant was in the habit of spending a portion of each year in the Territories and residing in England the remainder of the time. An ordinary writ for service within the jurisdiction, returnable in ten days, was issued by the plaintiff, and the defendant not

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being found an order was made by a judge in chambers allowing the writ to be served out of the jurisdiction and extending the time for appearance to sixty days. The amended writ was served on the defendant in England and he moved before the judge who made the order to have it rescinded and the writ and all proceedings thereon set aside for irregularity. The motion was refused by the judge whose decision was affirmed by the full court. The defendant then sought to appeal to the Supreme Court of Canada.

Chrysler Q.C. moved to quash the appeal for want of jurisdiction. The decision appealed from is not a final judgement under the Supreme Court act but is a decision that deals merely with a matter of practice or procedure in the court below with which this court will not interfere. See Standard Discount Co. v. Le Grange ([2]).

Moss Q.C. contr:—The fact that an appeal relates to a matter of practice will not oust the jurisdiction of this court. McKinnon v. Kerouack ([3]); Wallace v. Bossom ([4]).

An important question as to the jurisdiction of the court below is involved in this appeal. In re Anglo-African s.s. Co. ([5]).

The following cases were cited as authorities for the position that defendant had no other remedy than to move as he did. In re Orr Ewing ([6]); Hewitsin v. Fabre ([7]): Fozen v. Hawkins ([8]).

For service out of the jurisdiction only a concurrent writ could be issued. Smallpage v. Tongue ([9]); Fowler v. Bristow ([10]).

SIR W. J. RITCHIE C.J.—After hearing the very full

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argument of Mr. Moss I cannot say that this case is anything more than an application to set aside a writ which was refused, and whether it touches the jurisdiction of the court below or not I do not think, so far as I can understand the case, to be of any importance whatever because the question we have to determine is not: Had the court below jurisdiction? but: Have we jurisdiction to hear the appeal ?

I do not see how the decision in this matter can be called a final judgment under our statute or that it comes within any of the provisions of the act giving us jurisdiction and if not I fail to see how we can possibly hear an appeal our jurisdiction being purely statutory. If we should entertain this appeal we should be flooded with appeals in all cases where orders in chambers have been made and judgments pronounced thereon in matters relating to practice and procedure in the court below. I think the appeal should be quashed.

Strong J.—I am of opinion that the motion to quash this appeal must be granted. Mr. Moss has said everything that could be said in favor of the jurisdiction but he has failed to satisfy me that we can entertain the appeal. As the Chief Justice has said the only question is: Is this a final judgment? That is answered, I think, in this way. The application in this case was to set aside a writ of summons, nothing more nor less, and if we were to hold the decision of the judge a quo to be a final judgment under our statute, we should have to hold the same in every like case where judgment has been given affirming or setting aside an order of a judge in chambers. I think that the circumstance that an appeal would involve the question of the jurisdiction of the Supreme Court of the territories to make an order for service beyond their territorial jurisdiction a mere incident in the case,

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and that it does not for the present purpose differ the case from any other order made as a mere matter of procedure.    

Gwynne J.—The point in question appears to be whether the court in the North West Territories had or not jurisdiction to make the order appealed against. Their order concludes the point, as far as that court can, that it had jurisdiction. I am not satisfied, if that was an erroneous decision, that there is not an appeal to this court under the statutes relating to our jurisdiction, but as the other members of the court appear to entertain no doubt upon the point I do not desire to delay judgment for further consideration of it.

Patterson J.—I think the question we are dealing with at present is not whether the court of the North-West Territories had jurisdiction, but whether we have jurisdiction to hear the appeal, and that must depend upon the question whether or not the judgment appealed from is, within the meaning of the statute by which we are governed, a final judgment. I do not think it is. I think it merely deals with the matter of setting aside a writ of mesne process. The cases referred to by Mr. Moss, which show that the question dealt with by the court below is one of considerable importance, and that the mode adopted by the appellant is the only one by which relief could be obtained, do not, in my opinion, touch the question of our jurisdiction. The observation of Baron Amphlett quoted by Mr. Moss from one of those cases([11]), makes the distinction between a summary decision by a judge in chambers, although it may, in England, be contested

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on appeal and if necessary in the House of Lords, and a determination of the merits of the action.

Our jurisdiction does not arise until the merits have been disposed of. I think, therefore, that the appeal should be quashed.

Appeal quashed with costs.

Solicitors for appellant: Longhead, McCarthy & Beck.

Solicitor for respondent: T. B. Lafferty.