Appea1-Final judgment-Action en rdprise d'instance-Art. 439 0.O.P. -R.S.C. ch. 135, 2, 24 and 28.
The plaintiff in an action brought to set aside a deed of assignment died before the case was ready for judgment, and the respondent having petitioned to be allowed to continue the suit as legatee of the plaintiff under a will dated the 17th November, 1869, the appellant contested the continuance on the ground that this will had been revoked by a later will dated 17th January, 1885.
The respondent replied that this last will was null and void, and upon that issue the Court of Queen's Bench for Lower Canada (appeal side) reversing the judgment of the Superior Court, declared null and void the will of 17th January, 1885, and held the continuance of the original suit by respondent to be admitted. On appeal to the Supreme Court the respondent moved to quash the appeal on the ground that the judgment appealed from was an interlocutory judgment, and it was
Held, that the judgment was res judicata between the parties and final on the petition for continuance of the suit, and therefore appealable to this court.
R.S.C. ch. 135 sees. 2 and 28.
Shaw v. St. Louis (8 Can. S.C.R. 385.) followed.
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) confirming the judgment of the Superior Court.
:-Strong, Taschereau, Gwynne and Patterson JJ. (Sir W.