Arpin v. Merchants Bank of Canada, (1895) 24 SCR 142

Supreme Court of Canada

Arpin v. Merchants Bank of Canada, (1895) 24 SCR 142

Date: 1895-05-01

CHARLES ARPIN (CONTESTANT)

Appellant;

And

THE MERCHANTS BANK OF CANADA (PETITIONER)

Respondent.

1895: Mar 1

PRESENT:—Sir Henry Strong C.J., and Fournier, Taschereau, Sedgewick and King JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Appeal in matter of Procedure—Art. 188 C.C.P.

A judgment of the Court of Queen's Bench for Lower Canada (appeal side) held that a venditioni exponas issued by the Superior Court of Montreal to which court the record in a contestation of an opposition had been removed from the Superior Court of the district of Iberville, under art. 188 C. C. P., was regular. On an appeal to the Supreme Court of Canada : Held, that on a question of practice such as this the court would not interfere. Mayor of Montreal v. Brown (2 App. Cas. 184) followed.

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) confirming a judgment of the Superior Court for the district of Montreal maintaining respondent's petition to be put in possession of an immovable property purchased at a sheriff's sale.

The facts can be briefly stated as follows :

Charles Arpin the present appellant, Telesphore St. Cyr and one Meunier, were condemned by judgment of the Superior Court of the district of Iberville to pay to the Union Bank of Canada a sum of about $1,300 and costs. To satisfy the judgment the bank issued a writ of execution in the district of Iberville against the lands and tenements of Charles Arpin.

Edouard Arpin, a third party, who up to that time had not been a party to the suit, filed an opposition to the seizure. His attorney of record was the Honourable A. N. Charland, then an advocate, and who was since appointed a judge of the Superior Court.

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The opposition of Edouard Arpin was contested by the plaintiffs the Union Bank of Canada, and when it came up for proof and hearing the Honourable Judge Charland, who was holding the court, made a written declaration of the ground of recusation which existed against him, and in consequence it was ordered that the record in that suit be sent to the Superior Court of the district of Montreal.

At Montreal Edouard Arpin's opposition was heard and dismissed.

It then became necessary for the plaintiffs to issue a writ of venditioni exponas. This was done but the writ was not issued by the Superior Court of Iberville, where the judgment had been rendered and remained of record, but by the Superior Court at Montreal

The sale took place and the property was adjudged to the respondents in the present case.

Appellant having refused to deliver up the property respondent made a petition to obtain possession thereof, which petition was contested by appellant.

Lajoie for appellant proceeded to argue that the question which arose on this appeal was as to the proper construction to be put on art. 188 C. C. P. and that the sheriff's sale under a writ of venditioni exponas issued by the Superior Court for the district of Montreal was an absolute nullity when the court stated they would not call upon Mr. Campbell counsel for the respondent, but would proceed to deliver judgment.

THE CHIEF JUSTICE.—This is a mere point of practice. An opposition having been filed to a sale of lands under execution upon a judgment in the Superior Court, recovered in the district of Iberville the judge of that district, Mr. Justice Charland, was recused, and the action and contestation of the opposition was thereupon removed to Montreal where the opposition

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was dismissed. Then a writ of venditioni exponas was issued by the Superior Court in the district of Montreal. This was held to be regular by the Superior Court. (Gill J. ) and the Court of Appeal (Bossé J. dissenting,) affirmed the Superior Court.

We have always said that on points of practice like this we will follow the course of the Privy Council, as laid down in the Mayor of Montreal v. Brown and Springle ([1]), and we have already acted on that principle in the cases of Gladwin v. Cummings ([2]), Dawson v. Union Banc ([3]) and Scammell v. fames ([4]).

I am of opinion that this case, in which there is a consensus of decision in the two courts below, is eminently one for the application of the same rule. Therefore the appeal should be dismissed with costs.

Had I to enter upon the merits of the question raised I should unhesitatingly agree with the learned chief justice of the Queen's Bench in the interpretation which he has placed on the 188th article of the code of procedure. By the provision contained in that article the court to which the proceedings have been remitted is to remain seised of the cause. This in my opinion, means that the whole record shall be considered as remaining in that court, and not that it shall be seised merely of the record limited to the incidental proceeding for the purpose of deciding which the removal had been made. But I do not enter on the merits. Without saying we have no jurisdiction we decline to interfere with the successive adjudications in the two courts below.

FOURNIER, TASCHEREAU, SEDGEWICK and KING. JJ. concurred.

Appeal dismissed with costs.

Solicitors for appellant : Bisaillon, Brosseau & Lajoie.

Solicitors for respondent : Abbotts, Campbell & Meredith.