Duval v. The King

In an action for damages by the respondent against her husband, the appellant, the latter inscribed in law on the ground that the action when instituted was prescribed.

The judgment of the trial judge, maintaining the inscription in law and dismissing the action, was reversed by the appellate court, which held that under art. 2233 C.C. husband and wife cannot prescribe against one another. Upon a motion by the respondent to quash an appeal to this Court for want of jurisdiction,

Held, that jurisdiction lies in this Court to entertain the appeal. The judgment appealed from is a "final judgment" within the meaning of section 2 (b) of the Supreme Court Act; the right in controversy under the inscription in law (i.e., the respondent's right to institute the action notwithstanding the lapse of time) is a " substantive right * * * in controversy" in a "judicial proceeding" and, unless reversed on appeal, the decision of the appellate court will be binding on the parties throughout all stages of the litigation and thus finally determines the issue in respect of that right. MOTION by the respondent to quash an appeal to this Court for want of jurisdiction from a judgment of the Court of King's Bench, appeal side, province of Quebec (1), dismissing an inscription in law by the appellant.

The material facts of the case and the question at issue are stated in the above head-note and in the judgments now reported.

Victor Lynch-Staunton K.C. for motion.

L. H. Ballantyne, (the appellant) contra.

THE CHIEF JUSTICE.-By the judgment of the Court of King's Bench (1), now under appeal to this Court, the defendant's inscription in law was dismissed.

By that CJ. and Rinfret, Cannon, Crocket, Davis, Kerwin and Hudson JJ.

(1) (1937) Q.R. 64 K.B. 27.