La Sarchi Cie v. First National Bank of Boston

ABBOTT J.:-Appellant's claim against respondent arises out of certain agreements alleged to have been entered into between the parties, in Italy and in the United States. Neither party resides in or has any place of business in the Province of Quebec. In its action, however, appellant alleged that the Superior Court has jurisdiction under art. 94, subpara. 4 of the Code of Civil Procedure by reason of the fact Taschereau, Fauteux, Abbott, Martland and Judson JJ. 1[19611 Que. Q.B. 702.

S.C.R.

that respondent has assets in the province. Respondent made a declinatory exception to the action on the ground that the Superior Court was without jurisdiction, and that exception was dismissed by the learned trial judge. His judgment was unanimously reversed by the Court of Queen's Bench' and appellant's action dismissed with costs. From that judgment appellant has appealed to this Court. Respondent has moved to quash the appeal on the ground that the judgment maintaining the declinatory exception and dismissing appellant's action is not a final judgment within the terms of ss. 36 and 2(b) of the Supreme Court Act, R.S.C. 1952, c. 259, the relevant portions of which read: The judgment a quo has finally disposed of appellant's action. No doubt any rights which appellant may have, might be asserted in another action in a foreign jurisdiction, but that does not affect the character of the judgment under appeal.

We are all of opinion that the judgment allowing a declinatory exception and dismissing the action is a final judgment within the terms of the Supreme Court Act. That was the view taken by this Court in Ripstein v. Trower , where the judgment maintaining a declinatory exception in the lower Courts, was successfully appealed to this Court. A motion to quash was rejected and the action was subsequently proceeded with on the merits. The judgment on the motion to quash is not reported, but it was subsequently referred to with approval in Fiset v. Morin .