Hill v. Hill, (1903) 34 SCR 13

Supreme Court of Canada

Hill v. Hill, (1903) 13 SCR 13

Date: 1878-04-25

ELIZABETH AGNES HILL

Appellant;

And

MARGARET EWING HILL et vir

Respondent.

1903: Oct 6; 1903: Oct 7; 1903: Oct 8; 1903: Oct 20

PRESENT :—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies Nesbitt and Killam JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH APPEAL SIDE, PROVINCE OF QUEBEC.

Action for account—Partition of estate of—Requête civile—Amendment of pleadings—Supreme Court Act, sec. 63—-Order nunc pro tunc—Final or interlocutory judgment—Form of petition in revocation—Res judicata.

On a reference to amend certain accounts already taken, a judgment rendered on 30th September, 1901, adjudicated on matters in issue between the parties and on the accountant's report homologated 25th October, 1901. judgment was ordered to be entered against the appellant for $26,366, on 30th January, 1902. The appellant filed a requête civile to revoke the latter judgments within six months after it had been rendered, but without referring to the first judgment in the conclusions of the petition. It was objected that the first judgment had the effect of res judicata as to the matters in dispute and was a final judgment inter partes.

Held, that whether the first judgment was final or merely interlocutory, the petition in revocation must be taken as impeaching both former judgments relating to the accounts upon which it was based that it came in time as it had been filed within six months of the rendering of the said last judgment and that it virtually raised anew all the issues relating to the taking of the accounts affected by the two former judgments.

A motion to amend the petition so as to include specifically any necessary conclusions against the judgment of 30th September, 1901 had been refused in the court below and was renewed on the appeal to the Supreme Court of Canada.

Held, that, as the facts set forth in the petition necessarily involved a contestation of the accountant's reports dealt with in the first

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judgment, the case was a proper one for the exercise of the discretion allowed by section 63 of the Supreme Court Act and that the amendment to the conclusions of the petition should be permitted nunc pro tune.

APPEAL from the judgment of the Court of King's Bench, appeal side, reversing the judgment of the Superior Court, District of Montreal, and dismissing the petition in revocation of judgment upon which a new trial had been ordered in an action en reddition de compte et partage.

On 16th June, 1902, the appellant presented a petition in revocation of a judgment rendered 30th January 1902, based on the report of an accountant, dismissing her action as against the executor and condemning her to pay respondents $26,316.34, and declaring the remaining undivided assets of the estate in question to belong to the respondents, on the grounds that the final judgment had been rendered on false documents, which had only subsequently been discovered to be false, and also the discovery of new evidence. The Superior Court Archibald J. on 10th January, 1903, maintained the petition, revoked the final judgment and replaced the parties in the position they were occupying before the judgment. The respondent appealed to the Court of King's Bench, which on 28th April, 1903, by a judgment of a majority of judges reversed the judgment of the Superior Court and dismissed the petition in revocation of judgment. The plaintiff now appeals.

The questions raised on the present appeal are stated in the judgment now reported.

T. Chase Casgrain K.C. and Farquhar S. Maclennan K.C. for the appellants.

The plaintiff was not guilty of want of diligence in not having the new evidence at the original trial, but exercised reasonable diligence in procuring all

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known evidence pertinent to the issue. The law does not require extraordinary diligence. Wilson v. Clancy ([1]) ' Broadhead v. Marshall ([2]); Shields v. Boucher ([3]).

The word ' false' in art. 1177 0. P. Q. must be given its natural ordinary meaning of untrue or erroneous, which has been placed upon it by the Court of Review. and in the case of Durocher v. Durocher ([4]). Upon that construction, the judgment, without doubt, has been based upon false documents and should be set aside. 4 Carré & Chauveau, Quest. 1759; 1 Pigeau, pp. 550, 555 * D. P. 54-2-182; 68-2-79; Dalloz Supplement vol. 15, to. Requête Civile, nn. 74-77 : Labori, vol- 11, vo. Requête Civile, n. 165; Laflamme v. St, Jacques ([5]). Even a slight irregularity in procedure may give rise to a requête civile; Eastern Townships Bank v. Swan ([6]); Neil v. Champoux ([7]); Glazier v. Kotzan ([8]).

The judgment of 20th September, 1901, cannot beheld to be chose jugée or res judicata with respect to the issues raised on the petition in revocation. The issues are not the same. In the judgment of September there is no dispositif of the issues which respondent now claims were finally decided in her favour. In the original case the plaintiff claimed to be discharged from the bon and draft because the advances on them were gifts under the will; but the contention in the petition was on the ground of payment and surrender of titles. In the original case, plaintiff claimed to be discharged from the Winning, Hill and Ware liability by a deed of composition and a judgment of discharge from court; but in the petition, that the liability had been extinguished by novation and entirely independent of

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the deed of composition to which he never became a party. The two issues in each proceeding were entirely distinct, and different evidence was applicable to each. The September judgment did not pass upon the issues presented in the petition and, therefore, the defence of chose jugée must fail. The test of identity is found in the inquiry if the same evidence would support both proceedings. It is clear it would not. 24 Am. and Eng. Encycl. of Law, 2ed., 780, 781; Township of Stanstead v. Beach ([9]) per Hall J. at p. 282 of the Queen's Bench Reports; 7 Larombière art. 1351 sec. 18. The September judgment did not dispose of the entire controversy between the parties. It was necessary to have the accounts of the parties before the court in order that a further judgment should be rendered, dividing the property and finally disposing of the action on the demand for partition. The judgment appointing the accountant originally did not order the accounts of the parties to be made up. That order was given by the September judgment, and it was necessary, because the September judgment did not fix the amount of the share of each party nor how much was to be divided nor of what the property to be divided consisted, whether monies, bank shares, stocks or real estate, nor whether the property was such as could be conveniently divided in kind. All these details and particulars appear in the final judgment of 30th January, 1902, based upon the supplementary report filed in pursuance of the September judgment. Moreover, the plaintiff did not get the benefit of the reduction 6f interest made in his favour by the September judgment, as the accountant under took to reduce the overcharge of interest by a different amount. See Thompson v. Mylne ([10]). A preliminary decree, prescribing the manner of proceeding deemed

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necessary by the court to arrive at a final decision, cannot have the force of res judicata It remains under the control of the court, subject to its revision, until a final decision.

In so far as the September judgment can be held to determine the principle on which the supplementary report was to be made in order to arrive at the rights and shares of the parties, it was an interlocutory judgment contemplating further proceedings in court and subject to revision on the final judgment disposing of the prayer in the conclusions of the action asking for a partition of the property in question. See Tate v. Janes ([11]); Wardle v. Bethune ([12]); Lottinville v. McGreevy ([13]); Grane v. McBean ([14]); Budden v. Rochon ([15]); Bayard v. Dinelle ([16]).

When the petition in revocation was presented, the contention of the plaintiff was that if the final judgment of 30th January, 1902, disposing of the action. and the judgment of 25th October, 1901, homologating the supplementary report were revoked and set aside, the whole case would be re-opened in such a manner that effect could be given to the new evidence and that the case could then be disposed of in the light of the whole evidence then before the court. The plaintiff, accordingly, did not pray for the revocation of the judgment of 20th September, regarding it as an interlocutory judgment. At the trial the plaintiff moved for leave to amend the prayer of the petition by including in the paragraph of the conclusions asking for the revocation of the judgments of January 80th, 1902, and October 25th, 1901, the interlocutory judgment of September 20th, 1901, and that application is now renewed before your lordships and under the

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provisions of arts. 513 to 526 C. P. Q. and sec. 63 of the Supreme Court Act. The plaintiff is entitled to the amendment if it is necessary to do justice between the parties.

The plaintiff asked to be permitted to plead as part of the contestation of the accountant's report the facts set out in the petition in revocation, which related not only to the supplementary report but also to portions of the original report, and would not in any manner change the nature of the demand, but merely allow the plaintiff to ask for the revocation of the September judgment as well as of the two subsequent judgments. Poulin v. Langlois ([17]) Walker v. St. Maurice ([18]); Seery v. St. Lawrence Grain Elevating Co. ([19]); Haight v. City of Montreal ([20]). In Voligny v. Corbeille ([21]), an amendment was allowed o a requête civile. See also Dugas v. Marineau ([22]) Perrault v. Simard ([23]); Bressler v. Bell ([24]). The Privy Council in Kent.v. La Communauté des Saurs de Charité de la Providence ([25]), granted leave to amend the pleadings after refusal of the motion in the court below, and referred the case back to the Superior Court for judgment on the merits. We also refer to Lambe v. Armstrong ([26]); Russell v. Lefrançois ([27]); and City of Montreal v. Hogan ([28]).

Béique K.C. and Lighthall for the respondents. The judgment of 20th September, 1901, is chose jugée between the parties and cannot now be annulled, reversed or modified; Art. 1241 C. C. It was a final judgment; Shaw v. St. Louis ([29]); Singster v. Lacroix ([30]) : FuzierHerman, Rep. vo. "Jugement" nn. 41, 134, 141, 150,

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212 bis, 213, 232, 233, 235, 282 et seq., 406. See also Barry v. Rodier ([31]); Mercier v. Barrette ([32]); Forest v. Heathers ([33]); Budden v. 'Rochon ([34]); Plenderleath v. McGillivray ([35]); Benjamin v. Wilson ([36]). Conversely, the judgment of September 20th is not in any sense an interlocutory judgment of a nature subject to revision by the judgment of 30th January, 1902, and still less by that on the petition. It is not even mentioned in the petition.

The missing books and documents had been seen by the plaintiff and their non-production cannot correspond to the discovery of "documents" of a conclusive nature withheld owing to circumstances contemplated by the law. All the alleged " new documents" and "new evidence " are choses jugées under the judgments of 20th September and 11th November, 1901. Hence even if petitioner were put back to the position of 25th October, 1901, the ultimate result would not be changed, for he would still be blocked by these judgments. Hence the provisions of art. 505 § 1 C. P. Q. are not complied with.

In short, to go back to the position before 25th October, 1901, would be useless and illegal.

Were the alleged facts true the great lack of diligence alone works an estoppel after so many years of opportunity for a regular trial. The alleged excuse is only the neglect to make ordinary searches. Fairbanks v. Barlow ([37]); Benoit v. Salvas ([38]); Daoust v. Paquet ([39]).

The Supreme Court has settled the jurisprudence of this case in Shaw v. St, Louis ([40]) and we submit also

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that in a question of provincial procedure the decision of the-provincial court of appeal should be left undisturbed.

The judgment of the court was delivered by

The CHIEF JUSTICE.—This appeal is from a judgment of the Court of Appeal at Montreal reversing a judgment of the Superior Court which had granted the conclusions of a "petition in revocation of judgment filed by the present appellant. It arises from an unfortunate quarrel between brother and sister over the division of their father's estate.

Upon an action en reddition de compte et partage, the accountant duly appointed by the court made a report by which he found the appellant to be indebted to the respondent in a very large amount. The parties both filed a contestation of that report. The case having gone to trial on these two contestations, the court by a judgment of the 20th September, 1901, adjudicated upon the various contentions of the parties, but referred the report back to the accountant to have it altered according to the said adjudication, with order to return it as so altered within ten days, costs of the whole case to be paid out of the estate. The said altered report having been duly filed, the court, upon motion by the respondent, homologated it on the 25th of October, 1901. By that report the appellant was found to be indebted to the respondent in a sum of $26,316; and upon inscription by the respondent for judgment accordingly, the court, on the 30th January, 1902, gave judgment for that amount in favour of the respondent against the appellant, as it could not but do.

The appellant subsequently, in June following, presented a petition in revocation judgment under article 1117 of the Code of Procedure, alleging that since the said condemnation against him he had discovered new

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evidence of which he had no prior knowledge whatever, which new evidence, as he alleges, would establish that instead of his being the respondent's debtor, he is her creditor in a substantial amount. His conclusions are:

1. That the present petition in revocation of judgment be received by this court

2. That an order be forthwith made and promulgated to suspend the execution of said judgment of 30 th January, 1902.

3. That the said judgment of 30th January, 1902, and all proceedings had thereon, and the interlocutory judgment rendered on 25th October, 1901, homologating said supplementary report, be revoked, annulled, set aside, rescinded, cancelled, declared void and of no effect; and that said parties be restored and replaced in the same positions occupied by them respectively prior to the rendering of the said judgments.

4. That the plaintiff petitioner be permitted to plead as part of his contestation of the said accountant's report the facts herein above set forth

Upon issue joined by respondent upon the said petition the case went on to trial upon this new incident thereof, and ultimately judgment was given by the Superior Court granting the conclusions of the petition, the court finding that its essential allegations of fact had been proved. Upon an appeal by the respondent, the Court of Appeal reversed that judgment exclusively upon the ground that as the petition did not ask the revocation of the judgment dated the 20th September, 1901, the appellant's petition could not be allowed, the court holding that the judgment revoking only those of the 25th October, 1901, and of the 30th January, 1902, as prayed for, which were but the necessary consequence of that of September, 1901, and in execution thereof, without revoking this last one which to all intents and purposes was a final judgment, was inoperative and of no effect.

The findings of fact of the trial judge were not interfered with, and I may at once say that I cannot see

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that we would be justified in interfering with them here.

The case, under these circumstances, that is presented for our determination is, to me, a plain one. The petition has been dismissed by the Court of Appeal simply upon the ground that by inadvertence the petitioner has omitted in his conclusions to include with the other two judgments the one of the 20th September, 1901. Now all the allegations of the petitioner are directed against that judgment. That is the one by which he is aggrieved, assuming his allegations of fact to be well founded. His demand would be nonsensical if it did not attack that judgment as well as the others.

The contestation of the accountant's supplementary report that he specifically asks to be allowed to make upon the facts he has since discovered necessarily includes a contestation of his first rer>ort as the second is, of course, based entirely on the first. He asks that the accounts between him and the respondent be opened up de novo, and that could not be done without revoking the said judgment of September, 1901. It is patent that the omission to include it specifically in the conclusions of the petition is due to a clerical error and nothing else.

Now, the Supreme Court Act decrees expressly section 63, that at any time during the pending of an appeal this court may, with or without any application,. make all such amendments as are necessary for the purpose of determining the real question or controversy between the parties as disclosed by the pleadings, evidence or proceedings.

I am of opinion that here we should exercise the discretion that the statute so confess upon us and order that the necessary amendment nunc pro tunc be made in the conclusions of the said petition, by adding therein1

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as if included in the petition as filed, the said judgment of the 20th September, and that the parties be restored, to the position they respectively occupied before the rendering of the said last judgment. If the appellant fails to prove the facts that he now says he is able to prove, the respondent will not suffer; the judgment in his favour will remain. If on the conrary, these facts are proved a gross injustice will have been prevented.

The respondent herself, I may add, in her plea to the appellant's petition renounced to the large sum of $15,679 and interest from the 30th of September, 1901, much more than half of the judgment that she had recovered against the appellant Now that sum had been taken by the court from the accountant's first report, antecedent to the judgment of September 1901, as item No. 57 thereof. This shews clearly, first, that, notwithstanding the respondent's reserves and without determining what may be the consequence of that retraxit, if the appellant had not asked for the revocation of these judgments against him, he would have been forced to pay the $15679 and interest from which that plea of the respondent purports to relieve him. And, secondly, that the respondent herself pleaded to the said petition as impugning the judgment of September, 1901, since it is by that judgment that the court determined the contestation as to that item 57.

I do not think it necessary to consider the question argued at bar whether the said judgment of September, 1901, was a final or an interlocutory one. I must say that it seems to me, without determining it however, that the Court of Appeal was right in holding if to have been a final one The Queen v. Clark ([41]). But this is of no consequence as I view the case.

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The petition virtually attacked it, must be read as attacking it, and that petition was filed within the six months given to attack a final judgment.

I would allow the appeal and restore the judgment of the Superior Court with the addition of the judgment of September, 1901, in the dispositif thereof.

As to the costs, under the circumstances, I would give none to either party in the Court of Appeal nor in this court.

Appeal allowed without costs.

Solicitor for the appellant : Farquhar S. Maclennan.

Solicitors for the respondents : Lighthall, Harwood & Stewart.