Shives Lumber Co. v. Price Bros. & Co., (1917) 58 SCR 21

Supreme Court of Canada

Shives Lumber Co. v. Price Bros. & Co., (1917) 58 S.C.R. 21

Date: 1917-06-22

The Shives Lumber Company (Defendant). Appellant:

and

Price Brothers and Company (Plaintiff). Respondent.

1917: May 28; 1917: June 22.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

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

Appeal—Jurisdiction—Amount in controversy—Retraxit.

An action was brought to recover $3,616.35 as the value of timber cut on limits, of which boundaries were in dispute; and at the trial the claim was reduced by consent to $1,367.45.

Held, Fitzpatrick C.J. and Idington J. dissenting, that there was jurisdiction in the Supreme Court of Canada to entertain an appeal.

MOTION to quash an appeal from the judgment of the Court of King's Bench, appeal side, reversing the judgment of the Superior Court, District of Rimouski, and maintaining the plaintiff's action for the sum of $1,367.45, after deduction, from the amount of the demande, of $1,248.90, by consent of the parties at the trial and before enquête.

The action was for $3,616.35, the value of timber which the plaintiff alleges was cut in trespass on its timber limits. The defendant denied the trespass and alleged title to the trees as having been cut on its own limits.

Belcourt K.C. for the motion.

Hall Kelly K.C. contra.

The Chief Justice.—This is a motion to quash for want of jurisdiction.

The action was brought to recover the sum of $3,615.35 as damages representing the value of timber

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which the plaintiff alleges was cut in trespass on its timber limits. The defendants, by their plea, denied the trespass and alleged title in themselves to the trees. At the trial and before enquête the amount of the claim for damages was reduced by consent to the sum of $1,369.45.

On those facts I am of opinion that we are without jurisdiction to hear this appeal. As has already been said in many cases, in determining the sum or value in dispute the proper course is to look at the conclusions of the declaration. There is no question of title involved; the plaintiffs brought their action in a form which imposed upon them the obligation to prove that they were injured as alleged. This they could not do if there was any doubt about their title. Béliveau v. Church.[1]. Here the only claim is for damages the amount of which was by consent before trial reduced below the appealable limit. Town of Outremont v. Joyce[2]; Dufresne v. Fee[3]. As was said in Toussignant v. Nicolet[4], it is settled Jaw that neither the probative force of a judgment, nor its collateral effects, nor any contingent loss that a party may suffer by reason of a judgment are to be taken into consideration. The only thing to be considered is the matter directly in controversy and necessary to be determined to dispose of the rights of the parties in the particular case. As to the effect of retraxit, see Cameron, 267.

Motion granted; appeal quashed with costs.

Davies, J.—I am of the opinion to dismiss this motion with costs on the ground that the title to the lands in question is involved.

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Idington J. (dissenting)—It is quite clear that there cannot be any matter in controversy in this appeal which involves an amount of the

sum or value of two thousand dollars

as stated in section 46, subsection (c) of the "Supreme Court Act" to be the limit of jurisdiction for Quebec appeals, when the amount demanded had before judgment expressly been fixed by the agreement of the parties at a sum much below that.

Therefore I cannot find the amount so involved a basis for our jurisdiction.

The facts in Dufresne v. Fee[5], relied upon render it distinguishable, and I do not think the decision therein affirms any principle of action which we must abide by herein.

Nor do I find any actual dispute of title involved. And, according to the judicial system in Quebec, as I am advised, this dispute of boundaries within which the timber in question was cut cannot test anything relative to title.

The motion to quash should prevail with costs.

Duff J.—It is very clear, I think, that the proceedings out of which the appeal arises involve a controversy regarding a title to lands and that the appeal is consequently not excluded by section 46. It is not disputed that in other respects the conditions of jurisdiction under section 37 are fulfilled.

Anglin J.—I think this case is indistinguishable in principle from Dufresne v. Fee5, and would, therefore, dismiss the motion to quash.

Motion dismissed with costs.