The Exchange Bank of Canada v. Gilman

A a 15.

CANADA,

(PLAINTIFFS) ..........

APPELLANTS; *June 14.

FRANCIS E. GILMAN, (DEFENDANT),

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

Sir W. J. RITCHIE C J.-1 think this appeal should be allowed.

I have been favoured with a perusal of Mr Justice Taschereau's notes with which I entirely concur.

I think the retraxit was given in open court in the presence of the parties and did not require other notification, and was adjudicated on and allowed by the court and the judgment not appealed from. was of opinion that the appeal should be dismissed for the reasons stated by the judges of the Court of Queen's Bench for Lower Canada (appeal side).

J.-The Bank in the present action claims from Gilman $41,627.93 being, as they allege, due to them from Gilman as follows:- Promissory Note, 12th July. 1882, $15.000.00. Amount to balance Trust Account,

19,956.51. Ordinary Account......................

6,671.42. To this action, the defendant pleaded, as to the note, want of consideration, and as to the other two items a J. general denial, coupled with an allegation that all that he owed to the bank had long been paid and satisfied.

The defendant further pleaded -- 1st. Lis pendens, that the causes of action in the present suit were part of the cause of action, by plaintiffs, against him in a previous suit, which, he alleged, was still pending; 2nd, that there was chose jugde in that first suit of the matters in issue in this suit.

Two more contradictory pleas than these last two, it is impossible to imagine. If the first action referred to in these pleas is still pending, how can it justify a plea of res iudicata ? If, on the contrary, it is determined, and res judicata, how can it justify a plea of lis pendens ?

The Superior Court (Torrance J., June 26, 1886) dismissed all of the defendant's pleas, and gave judgment in favor of the bank for the full amount claimed, but the Court of Appeal reversed that judgment and dismissed the action on the ground of lis pendens, as appears by the following considdrant:

jide, From that judgment the bank now appeals. I am of opinion that this appeal should be allowed. There was, when this action was instituted, no lis pendens as invoked by the defendant. The facts which gave rise to that plea are as follows

The Exchange Bank, in January, 1884, sued Gilman for $52,317.92, the action being based- 1st. On a promissory note for $42,000, on which there remained unpaid a balance of $8,000.

2nd. promissory note for $15,000, signed by Mr. Gilman and given the bank for a deposit receipt for $15,000, issued by the bank, to be deposited with the Dominion Government for the execution of a contract. . 3rd. The balance due to the bank in connection with his trust and ordinary deposit accounts, $29,317.92. To the action so brought, the defendant pleaded that the $42,000 note " was fully paid and satisfied." He pleaded special circumstances regarding the $15,000 which he pretended exempted him from the obligation to pay it, and denied that he was indebted to the bank for any portion of the accounts for $29,317.

The case then went " en delibrd" with this withdrawal appearing on the face of the record, and on the 14th June following, 1884, Judge Mathieu gave judgment against Gilman for the $8,000 due on the note for $42,000, granting acte, to the plaintiffs, of their withdrawal of the other items of their demand in the following terms:

lowing

The court having heard the parties by their counsel upon the meits of this cause, examined the proceedings, the evidence and proof of record, seen the declaration made and filed by plaintiffs on the thirtieth of May last past, whereby they withdraw in the present action Taschereau all portions of their demand, except that in reference to the check (note) for forty-two thousand dollars, under, however, express reserve of their rights to reinstitute actions upon the note for fifteen thousand dollars, and upon all the vouchers, documents and claims contained in Exhibit No. 1. filed in this cause, and upon all other claims and demands they may have against the defendant, and upon the whole duly deliberated

Doth grant acte to plaintiffs of their said declaration of withdrawal of portions of their demand as aforesaid.

From this judgment the defendant appealed to the Court of Review, but that court unanimously confirmed Judge Mathieu's decision.

This judgment of the Court of Review was a final judgment, no appeal lay therefrom.

The bank on the 4th of December, 1884, instituted the present action for the recovery of the balance of that part of their claim against Gilman which they had withdrawn in the suit determined by Judge Mathieu, under express reserve of their right to institute their present action, as stated above.

It is on the case so determined by Judge Mathieu that the defendant grounds his plea of litis pendens upon which the Court of Appeal has dismissed the action.

It appears from the extracts of the registers of the court printed in the case, that the withdrawal by plaintiffs of part of their claims in the first action, was made at the trial and in presence of the court. If that is so, it is clear that the procedure is unimpeachable. Art. 451 of the Code of Procedure purports only to permit of a withdrawal outside and without the interference of the court and a reference to section 25, ch. 82, C.S.L.O. shows by the words therein " even in vacation " that the enactment was made only for the BANK OF

CANADA purpose of allowing a withdrawal outside of the court. A withdrawal in court and with permission of the T e court, was always legal without that enactment : See Taschereau

J.

Pigeau Proc6dure Civile (1).

The commentators under the corresponding articles of the French Code of Civil Procedure, 402, 403, are all unanimous in the conclusion that these articles are permissive only. Carr6 et Chauveau, Proc6dure Civile, says (2) :

Le desistement et 1'acceptation peuvent-ils 6tre faits do toute autre mianibire que celle indiqu6c par 1'article 402 ?

L'affirmative parait resulter de cc que 1'article est congu en termies facultatifs

"le d6sisternent comme Pacceptation pett, etc., et non doit, etc."

II pent done 6tre fait de diffirentes mianibres, par exeniple: A l'audience en pr6sence du juge qui en peut d6cerner acte ; mais il faut que le demandeur et le d6fendeur se trouvent h l'audience en personne on par des mandataires ; alors leur pr6sence est constat6e par le juge, et sans qu'il soit besoin de signatures.

Le contrat judiciaire est fornS parce qu'aucune loi n'exigeant que les parties on leurs fond6s de pouvoir signentleursaliresnilesarrangements qu'ils font th Paudience, Pintervention du tribunal qui atteste et consacre ces arrangements supple inineimment les signatures. Thomine-D6smazures (3).

I pourrait encore 6tre fait h 'audience, par 1'avou6 qui demuanderait acte du disistement de sa partic, en d6posant des conclusions d'elle on de son fondi6 de pouvoir.

La seconde condition est que lacte de disistement soit jignifi d'avou a avou.

Cette seconde condition est indipendante de la validit6 de Pacte : elle ne doit 6videment Utre observie que quand il y a avou6 constitu6 de part et d'autre, et elle n'a pour but et pour effet que d'arr6ter le cours de la proc6dure et les frais ult6rieurs. Journal des avou6s (4).

Le d6sistement pent 8tre accept6 "t Paudience, et les juges out le droit d'en donner acte sans qu'il soit besoin d'une signification pr6alable d'avou6 A avou6.

Attendu quo l'article 402 du code do proc6duro civile, portant que le ddsistement peut 6tre fait et accept6 par un simple acte, signifi6 d'avou6 h avou6, il en r6sulte quo les parties ont la facult6 de faire et OF accepter le d6sistement do toute manibre juridiqae.

Favard de Langlade, Vo. D6sistement (1).

GILMAN. Quand il (le d6fendeur) a constitu6 avoud, le ddsistement peut Taschereau 6tre fait ot accept6 par de simples actes, signis des parties on de leurs mandataires et signifies d'avou6 i avou, (Code de Procdure, article pout aussi tre donn6 sur la barre h Paudience. Pour qu'il soit valable, il faut que le demandeur et le d6fendeur se trouvent i l'audience, et quo leur consentement soient constats par le juge.

Pigeau, Proc6dure Civile (2).

L'article 402 ne dit pas que le disistement doit, mais seulement qu'il peut 6tre fait et accept6 par acte signifi6 d'avou6 i avou6.

Ainsi il peat se faire valableient daus toute autre forme suffisante pour constater la volont6 des parties ; il peut done etre fait h Paudience en pr6sence du juge qui on donne acte.

Cour Royale de Paris.

Talansier c. Loyseau (3).

Les juges peuvent valider un d6sistement r6gulier quo la partic refuse d'accepter bien que cc refus soit fond6 sur cc que le d6sistant s'est r6serv6 d'intenter une nouvelle action.

I may also refer to Favard de Langlade (4).

Boncenne (5) and to the case of Ryan v Ward (6) and to the remarks of the judges therein.

The respondent, however, contends that the withdrawal in question was not made in open court, and that consequently it has no effect against him, not having been served upon him under Art. 451 C. C. P.

I do not attach much importance to this, taking it for granted that it was so. Judgment has been passed upon it in that first action : that judgment is final and conclusive.

The withdrawal of a portion of the demand, under reserve of the right of instituting a new action therefor, has been sanctioned and allowed by the

(1) T. 2, p. 79.

(4) Vo. D6sistement,

(2) T. 1, p. 455

court. In that case, and in that case alone, could that question be determined.

The judgment of the court in that case cannot be reviewed in this case. The court in that former case might have refused to admit that conditional withdrawal and either remit the case for further evidence or dismiss the action for the part J.

thereof not proved; but not having done so, and having allowed the plaintiffs' withdrawal, I do not see how, in this case, we can review that decision. That judgment stands, and to argue that there is lis pendens now because the plaintiffs demand from the defendant that portion of their claim which they withdrew on the first action seems to me untenable.

How can a case upon which a final judgment has been passed be said to be pending?

And, on the other hand, how can the defendant contend that there is res judicata in his favor as to the claim withdrawn in the first case by permission of the court, with reserve of the right by the plaintiffs to institute a new action thereof? That claim has not been dismissed, has never been adjudicated upon. The only claim determined in that first action was the one of $8,000.

The judgment of the Court of Appeal alludes to the fact that the judgment on the first action has since been set aside on a requite civile for want of stamps the promissory note for which the plaintiffs had recovered.

I think this fact was erroneously taken into consideration. There is no issue of that kind on the record, and the copy of the judgment as setting aside the first judgment was irregularly introduced in the record in the Court of Appeal. It could not have been invoked in-the Superior Court for the good reason that it was rendered on the 22nd December, 1887, more than a year after the judgment of the said Superior Court.

And the Court of Appeal could not give a judgment which the Superior Court could not have given, or take into consideration, as a ground of their judgment, a fact which did not exist when the Superior Court pronounced its judgment

Moreover, by the judgment of the Court of Appeal on the requele civile, the only case remitted to the court below was the case vN on the $8,000. The withdrawal as to the other items of the plaintiffs' claim remained in full force.

The J. plaintiffs having instituted the present action as to these items, could not have been allowed, in the Superior Court, to desist from that withdrawal.

As to the evidence of the plaintiffs' claims, the Superior Court, as I have remarked, has granted them the full amount demanded by the action, $41,627.

At the argument, the plaintiffs, however, agreed to take a judgment for $25,000.

I think that the evidence fully justifies a judgment for that amount with interest from 4th December, 1884, and costs distraits.

Gwynne and Patterson JJ. concurred with Taschereau J.

Macmaster, Hutchinson

* MacLennan.