Baptist v. Baptist

This was a motion by the respondent to quash the appeal for want of jurisdiction.

The facts of the case and proceedings are fully stated in the head note and in the judgment of His Lordship Mr. Justice Taschereau, hereinafter given.

C. C. P. ch. VII. art. 434.

Darling v. Templeton There is no evidence in the proceedings for the continuance of the original suit that any particular amount is in controversy, and therefore the case is not appealable, R.S.C. ch. 135, sec. 29.

The Rural J.-This case, comes up on a motion by the respondent to quash the appeal for want of jurisdiction, on the ground that the judgment appealed from is not a final but merely an interlocutory judgment. It is necessary for a .proper understanding of the question raised by the respondent to go more minutely than usual upon such. a motion into the details of the case.

I will do so, however, as concisely as possible.

On the 17th November, .1869, Isabella Cockburn, widow of G-eorge Baptist, and mother of the litigating parties in this case, made her will in favour of Margaret Baptist, the present respondent and others.

On the 17th January, 1885, the said Isabella Cockburn made another will, but this time in favour Alexander Baptist, the present appellant.

On that same date, the 17th January, 1885, she passed a deed of transfer and assignment or gift also in favour of the present appellant.

On the 23rd March, 1889, the said Isabella Cockburn was interdicted for cause of insanity and one Houliston was appointed her curator.

Ilouliston, then in his said quality, instituted an action against Alexander Baptist, the present appellant, asking, in her name, that the deed of transfer or gift passed by her, Isabella Cockburn, in favour of the present appellant, on the 17th January, 1885, be set aside, as having been passed by the said Isabella Cock- * burn when non mentis, and obtained by the appellant by undue influence and fraudulent manceuvres. To this action the defenaant, present appellant, pleaded a general denegatio4 and.an exception amounting to nothing more, by which he says that his mother Isabella Cockburn, though since interdicted, was compos mentis on the 17th .Tanuary, 1885, when she consented to give him the said deed, and that all the plaintiff's allegations of undue influence and fraudulent manceuvres are unfounded.

Soon after issue had been so joined the said Isabella Cockburn died, September 28th, 1889.

Thereupon, Houliston's powers as her curator and plaintiff in her name in the said action against the present appellant having come to an end, Margaret Baptist, the present respondent, asked the court to be allowed to continue the suit, alleging in her petition, as the basis of her right to do so, the said Isabella Cockburn's will of 186q in her favour (jointly with others) and that the said will had never been revoked.

To this petition the present appellant pleaded that the respondent had no right to continue the suit as he, the appellant, was the late Isabella Cockburn's legatee by her will of 1885, revoking that of 1869. The respondent replied that this will of 1885 passed on the same day as the transfer impugned by the principal action, was nill and void for the same reasons and upon the same grounds invoked in the said action; that -is to say; that it had been passed when the testatrix was not compos mientis and obtained by the appellant by undue influence and fraudulent mancuvres; she therefore prayed that the said will be declared void toutes fins que de droit, and that the appellant's contention of her demand for permission to continue the suit be declared unfounded and rejected. The parties went to trial upon those issues, which clearly raised question prdjudicielle. (1) and on the 16th January, 1891, the Superior Court of Three Rivers gave a judgment maintaining the will of 1885 in favour of the present appellant, holding that the respondent's allegations of fraud and illegality against it had not been proved, declaring that the respondent was consequently not entitled to continue the original action as the will of 1869 upon which she based her claim had been revoked by that of le85, and dismissing her petition for continuance of the principal action.

Upon appeal to the Court of Queen's Bench, however, the judgment of the Superior Court was reversed, and the will of 1885 set aside on the grounds of insanity of the testatrix, and of undue influence and fraudulent manauvres by the . present appellant. It is this judgment that the respond- a ent contends to be not appealable to this court.

I, at Taserean first, was inclined to think that she was right but, after further consideration, I have come to the conclusion that we have jurisdiction to entertain the appeal. By section 2 of the Supreme Court Act, it is enacted that the expression "final judgment " therein, from which an appeal would lie to this court means

Now, though we have held that no interlocutory judgments can be reviewed by this court under that clause, and though in form, perhaps, this is, in one sense, an interlocutory judgment, yet, it is clear that, though upon a side issue, the controversy between the parties has been, as far as can be in the provincial courts, determined and concluded.

See Shaw v.- St. Louis (1) and authorities therein cited.

The judgment setting aside the will of 1885 would not bind this court on an appeal from a judgment on the action setting aside the deed of assignment of the same date, but it would remain in force as res judicata between the parties upon the validity of the said will. The parties have, in fact, given themselves the luxury of two contestations where one would have been sufficient.

They have made of the controversy between them on the petition for continuance of the suit a second case quite independent of the other.

Upon that case the judgment which has been obtained is final and consequently we have jurisdiction.

It is a noticeable fact, though not by itself a conclusive one, that the appeal to the Court of Queen's Bench was taken de piano by the present respondent, without objection.

Of course she was appealing from a judgment which had dismissed her petition, and that judgment was appealable as a final T one, but why the judgment she has obtained.in the Court of Queen's Bench maintaining her petition and dismissing the contestation thereof is not also a final one, and as such appealable by her adversary to this court, I fail to see.

Motion refused with costs.