Donohue v. Donohue, (1903) 33 SCR 134

Supreme Court of Canada

Donohue v. Donohue, (1903) 33 SCR 134

Date: 1903-02-19

MARY DONOHUE et vir (PLAINTIFFS)

Appellants;

And

ANN DONOHUE et al., ÊS QUALITÉ (DEFENDANTS)

Respondents.

1903: Feb 17; 1903: Feb 29

PRESENT :—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies, Mills and Armour JJ.

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

Appeal—Jurisdiction—Matter in controversy Removal of executors Acquiescence in trial court judgment—Right of appeal—R. S. C., c. 135 c. 29.

The Supreme Court of Canada has no jurisdiction to entertain an appeal in a case where the matter in controversy has become an issue relating merely to the removal of executors though by the action, an account for over «82 000 had been demanded and refused by the judgment at the trial against which the plaintiff had not appealed. Noel v. Chevrefils (30 Can. S. C. R. 327) followed; Laberge v. The Equitable Life Assurance Society (24 Can. S. C R. 59) distinguished.

APPEAL from the judgment of the Court of Appeal, King' s Bench, appeal side, reversing the order made by the Superior Court, District of Montreal at the trial (Lavergne J.) which ordered the removal of the defendants as executors of the estate of the late Eleanor Ann Donohue (Mrs. Daoust) deceased, and dismissing the plaintiffs' action with costs.

The case is stated in the judgment now reported.

Motion to quash the appeal on the ground that the matter in controversy on the present appeal is merely an issue regarding the removal of executors, in respect of which the Supreme Court of Canada has no jurisdiction to entertain appeals.

Belcourt  K.C. for the motion cited Noel v. Chevrefils ([1]).

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Falconer,  contra, relied upon Lebarge v. The Equituble Life Ássurance Society ([2]) and Levi v. Reed ([3]).

The judgment of the court was delivered by

THE CHIEF JUSTICE. This is a motion to quash the appeal for want of jurisdiction. The plaintiff, now appellant, alleged in her declaration that the late Mrs. Daoust had by her will named the respondents her executors, who, upon her death, had accordingly entered into "possession of her estate and had since been administering the same. She concluded, first, that the respondents be ordered to render an account of their administration and, in default of so doing, that they be condemned to pay her the sum of $2,000. Secondly, that the said respondents be, for the future, dismissed from their said office as executors for certain acts detailed at length which she alleges to have been illegal and contrary to their duties.

The Superior Court rendered judgment maintaining the appellant's action in part and ordering the removal of the respondents as executors of the said estate but not granting her conclusions for an account, reserving her right to enforce the other conclusions of her declaration by another action.

Upon appeal to the Court of King's Bench by the executors from that judgment ordering their removal as such, the judgment of the Superior Court was reversed and the appellant's action dismissed altogether. The plaintiff, present appellant, had not appealed from that part of the Superior Court judgment which refused her demand for an account. That amounted to an acquiescence by her in the judgment of the Superior Court which had refused her demand for such an account.

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The plaintiff now appeals from that judgment so rendered by the Court of Appeal, exclusively upon her conclusions asking the removal of the respondents, I am opinion that we have no jurisdiction. It is con ceded by the appellant that the Court of Appeal was right in holding that they had no jurisdiction, in respect to that part of her conclusions asking for an account which the Superior Court had refused her as she had not appealed therefrom to that court. Now we could not here, were we of opinion that the judgment â quo is wrong, give any other judgment than that which the Court of Appeal should have rendered. And that would be simply to restore the judgment of the Superior Court, ordering the respondents' removal as executors. And it is settled in this court that an action simply to remove a tutor or an executor is not appealable. Noël  v. Chevrefils ([4]).

The appellants relied upon Laberge v. The Equitable Life Assurance Society ([5]) in support of their right to appeal. But that case has no application. The right to appeal here does not, as it did there, depend upon the amount in controversy and this is not a case where the amount demanded and the amount recovered are different provided for by 54 & 55 Vict. ch. 25 sec. 3, sub-sec. 4. There is no amount in controversy here at all. The only contestation on this part of the case is on the appellant's demand for an account. And by not appealing to the Court of King's Bench the plaintiff virtually withdrew from the court that part of her demand.

The motion is granted and the appeal quashed with costs.

Appeal quashed with costs.

Solicitors for the appellant: Fleet, Falconer &c Cook.

Solicitors for the respondents: Demers & deLormier.