Harris v. Harris

director of the appellant company, a pilot and a mechanic flew the machine to Lac Ouimet, some 65 miles from Montreal, and there decided to land.

In attempting to land, the machine was wrecked and totally destroyed. The appellant company made a claim for the full amount of the insurance, less ten per cent deductible and the cost of salvage.

The respondent company denied any liability under its policy on the ground that the flight which resulted in the loss of the plane had been made contrary to government regulations; which fact constituted a direct violation of the warranties contained in the policy, and on the further ground that the aircraft was not airworthy.

The trial judge held that the appellant company had established its claim to the extent of $14,185; but that judgment was unanimously reversed by the appellate court and the action was dismissed.

After hearing the arguments of counsel, the Court reserved judgment, and on a subsequent day delivered judgment, dismissing the appeal with costs.

C.J.C.-These are two motions made by the (defendant) appellant in the first action, and (plaintiff) appellant in the second action, by way of appeal from an order of the Registrar affirming the jurisdiction of this Court to hear appeals from the judgments, in two matrimonial causes, of the Court of Appeal for Ontario. In the first action the husband sued the wife and two co-respondents for divorce and was successful in maintaining his action. This judgment was upheld by the Court of Appeal. In the second case, the wife sued for alimony and her action was dismissed by the trial judge, whose judgment was also affirmed by the Court of Appeal. In both cases the wife is the appellant here.

We are of the opinion that there is jurisdiction in this Court to entertain the appeal in the alimony action from the judgment of the appellate court; but, in regard to the divorce action, it is quite different.

The only judgment pronounced so far in that action is that pronounced by the trial judge, affirmed on appeal, whereby it is provided that It is obvious that this is not a final judgment and cannot become such until the order is made absolute by the court. Many things may intervene before that takes place which would prevent the court from making the decree absolute, viz., collusion may later be established, or the defendant may have further evidence to offer when the application to make the order absolute is presented to the court. Anin At all events, until the decree nisi is made " absolute" there can be no appeal to this court from it. Nor can there be a right of appeal from its affirmation by the Court of Appeal to this Court, inasmuch as only final judgments of that court are appealable here; and, in our opinion, an order nisi, such as that now before us, cannot be regarded as a " final judgment " within s. 2(b) of the Supreme Court Act. It does not

Thus, the wife cannot re-marry, nor can the husband, under the present order. They are still husband and wife, unless and until the order shall be made absolute. The dissolution of marriage under the terms of the order itself becomes effective only when the order or judgment is made absolute; and this is so for all purposes.

The motion by way of appeal from the Registrar will, therefore, be granted as to the divorce action, and refused as to the alimony action. Under the circumstances, there will be no order as to costs.

Motion granted as to the divorce action, and refused as to the alimony action.

APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario (1), which, reversing the judgment of McEvoy J., dismissed the action.

On the appeal to the Supreme Court of Canada, after hearing the arguments of counsel, the Court reserved judgment, and on a subsequent day delivered judgment allowing the appeal with costs and restoring Duff J., with whom Rinfret, Lamont and Smith JJ. concurred, and by Cannon J.

Duff J. held that it was clear that Mrs. McMillan's husband had made himself responsible at each stage of the litigation, and had fully committed himself in respect of the appellants' bills; the one point was whether or not Mrs. McMillan herself, who was the real litigant, was bound.

There was no formal retainer by her nor anything personally cominunicated by her to the appellants which, in itself, could have amounted to a retainer of the appellants by her. But her husband was the general manager of her property in Windsor, and there was evidence also to shew that she was aware that the litigation was proceeding on her account and necessarily, therefore, aware that her husband was interesting himself in it. She gave a bond for security for costs, paid one of the accounts with her own cheque, and there was abundant evidence that accounts sent to her were received, because they were brought in later by her husband. The appellants were for a long period collecting rents and crediting the amounts to the expense of litigation; and in the defence a counterclaim was set up alleging that appellants had received as solicitors for Mrs. McMillan certain monies and did not pay them, or account for them, to her, and asking for an account. There was the series of actual occasions on which the appellants acted in the most open way, and to her specific knowledge, as her solicitors; in other words, there was a ratification of the acts of her husband in retaining the appellants, as he undoubtedly did, on her behalf.

The application for leave to appeal to the Privy Council, opposed by appellants on her behalf, was in the litigation in respect of which most of the bills were rendered; the party to the litigation was Mrs. McMillan who was the owner of the property concerned; her husband very properly applied for assistance from the Essex Border Utilities Commission in the cost of carrying on the litigation; the sum proposed to be advanced by the Commission was not regarded as anything like the whole of the costs. It was very clearly proved that Mrs. Mc- Millan permitted her husband, in the course of managing her affairs on the Canadian side of the line, to act for her in legal matters. She had, by her conduct, put it entirely beyond her power to dispute her husband's authority to act as her agent in giving instructions in reference to legal matters to the appellants.

J. held that there was no doubt that Mr. McMillan requested appellants to oppose the petition for leave to appeal before the Privy Council. Mrs. McMillan, before and after, certainly held out her husband as her agent for everything connected with the property in question. If, in fact, no agency existed, her husband, now her executor, should have sworn to that effect, but had not done so.

The trial judge was right in maintaining the action.