Supreme Court of Canada
Simpson v. Palliser, (1898) 29 SCR 6
Date: 1898-10-10
WILLIAM JOHN SIMPSON AND OTHERS (DEFENDANTS)
Appellant;
And
JOSEPH PALLISER (PLAINTIFF)
Respondent.
1898: Oct 10
PRESENT: —Sir Henry Strong C.J. and Taschereau, Sedgewick Kinig and Girouard JJ.
ON APPEAL FROM THE SUPERIOR COURT FOR LOWER CANADA, SITTING IN REViEW AT MONTREAL.
Appeal—Jurisdiction—Judgment in Court of Review—Judgment in first instance varied—Art. 43 C. P. Q.—54 & 55 V. c. 25, s. 3, s.s. 3—Statute, construction of.
Where the Superior Court, sitting in Review, has varied a judgment, on appeal from the Superior Court, by increasing the amount of damages, the judgment rendered in the court of first instance is not thereby confirmed so as to give an appeal direct from the judgment of the Court of Review to the Supreme Court of Canada under the provisions of the third sub-section of section three, ch. 25 of the statute 54 & 55 Vict. (D) amending the Supreme and Exchequer Courts Act.
APPEAL from the judgment of the Superior Court for Lower Canada, sitting in review, at Montreal, by which the decision of the Superior Court was revised and reformed and the amount of damages awarded was increased.
The action was brought for assault and slander and the plaintiff recovered a judgment for three hundred dollars damages in the Superior Court whereupon both parties inscribed in review, the defendants appealing on the ground that they were not liable for any damages whatever and the plaintiff contending by his cross-appeal that the damages should be increased.
The Court of Review dismissed the inscription by the defendants, declaring that there was error in the
[Page 7]
judgment of the Superior Court, and condemned the defendants to pay an increased amount of damages assessed at five hundred dollars.
The defendants then appaaled to the Supreme Court of Canada against the judgment rendered in the Court of Review asking the dismissal of the action, and the plaintiff also filed a cross-appeal to the Supreme Court asking for additional damages.
Atwater Q.C. and R. A. E. Greenshields for the defendants, appellants.
C. H. Stephens Q.C. for the respondent, and cross appellant.
While the arguments of counsel on behalf of the defendants, appellants, were proceeding the court raised the question of the jurisdiction of the Supreme Court of Canada to hear this appeal direct from the Court of Review and reference was made to article 43 of the Code of Civil Procedure of the Province of Quebec and to the Dominion statute, 54 & 55 Vict. ch. 25, sec. 3, sub-sec. 3. Counsel were heard on this question.
Atwater Q.C. for the defendants, appellants. There could be no appeal to the Court of Queen's Bench on the part of the defendants because the decision of the Superior Court, so far as it dismissed their pleas and declared their liability for damages, had been affirmed by the Court of Review, and although there might have been a right of appeal on their behalf respecting the increase in the assessment of damages, they could not appeal against the $300 judgment which had been confirmed nor could they obtain relief upon the whole case in the Court of Queen's Bench.
C. H. Stephens Q.C. for the plaintiff, respondent and cross-appellant. The plaintiff could not, on an appeal to the Court of Queen's Bench, take exception to any of the points that had been confirmed in the Court of
[Page 8]
Review any more than the defendants could have raised the questions set up by their pleas which had been dismissed in both courts.
At the conclusion of this argument judgment was pronounced on the question of jurisdiction.
THE COURT was of opinion that as the judgment of the Court of Review declared that there was error in the judgment of the Superior Court and thereupon proceeded to revise and reform the judgment of the Superior Court by increasing the damages awarded to the plaintiff and also rendering the judgment which it declared ought to have been rendered, there was no appeal direct to the Supreme Court of Canada from that judgment of the Court of Review because there was a right of appeal therefrom to the Court of Queen's Bench, where, upon a cross-appeal, the whole case would have been before that court.
The appeal was accordingly quashed, but as the objection to the jurisdiction had been taken by the court no costs were allowed.
Appeal and cross-appeal quashed without costs.
Solicitors for the defendants, appellants: Greenshields, Greenshields, Laflamme & Glass.
Solicitors for the respondent, cross-appellant: Stephens & Hutchins.
Email this Content