WILLIAM B. LAMBE, s qualitM (PETI- TIONER FOR FOLLE ENCHkRE.)..........
APPE2LANT;. *Mar 2. AND
%May 1. CHARLES N. ARMSTRONG (ADJU- DICATAIRE).....................................
E
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
The Supreme Court of Canada will take into consideration questions of practice when they involve substantial rights or the decision appealed from may cause grave injustice.
Part of lands seized by the sheriff had been withdrawn before sale but on proceedings for folle enchare it was ordered that the property described in the procds verbal of seizure should be resold, no reference being made to the part withdrawn. On appeal, the Court of Queen's Bench reversed the order on the ground that it directed a resale of property which had not been sold and further because an apparently regular sheriff's deed of the lands actually sold had been duly registered, and had not been annulled by the order for re-sale, or prior to the proceedings for folle enchare.
Held, that the Court of Queen's Bench should not have set aside the order, but should have reformed it by rectifying the error. Held, further, that the sheriff's deed having been issued improperly and without authority should be treated as an absolute nullity notwithstanding that it had been registered and appeared upon its face to have been regularly issued, and it was not necessary to have it annulled bf fore taking proceedings for folle enchire. APPEAL from the decision of the Court of Queen's Bench for Lower Canada (appeal side) reversing the judgment of the Superior Court, District of Montreal, :-Sir Henry Strong C.J. and Gwynne, Sedgewick, King and Girouard JJ.
which had granted the appellant's motion for a folle enchdre, and ordered a re-sale of the property seized by the sheriff.
A statement of the facts and questions at issue this appeal appear in the judgment reported.
Macmaster Q.O. and Stephens Q.C. for the appellant. The issue raised upon this appeal seems at first to involve mere questions of local procedure, which may be objected to as proper grounds for consideration by this court. Appellate courts have constantly allowed appeals based upon questions of practice when parties might thereby be deprived of remedy or made to suffer great injustice.
This is a case of that nature. It is clear that the slip in drafting the order for resale was excusable and occurred through the absence from the record in the office of the court of the notice to the sheriff withdrawing a very insignificant portion of the road-bed of the railway seized.
The order was for a resale, which could only include what had actually been sold before by the same sheriff under the same process.
The maxim de minimis non curat lex applies with striking force, but the Court of Queen's Bench reversed the order on technicalities, where there was no mistake either of law or of practice sufficient to vitiate it. The proper course was simply to have reformed the order by the rectification of a mere lapsus calamii of an officer of the court. The objection taken could not be of interest to the respondent, but on the contrary might have the effect of giving him an actual benefit by making title to the uninterrupted right of way.
The sheriff's deed was illegally issued without authority, because the judges' order did not dispense with the necessity of taking the security imperatively required by art. 688, C. P. as amended by R. Q. art. It was based upon proceedings which had been all set aside as irregular and was wholly unwarranted and an absolute nullity. The registration could have no effect but to cloud the title until rectified by suit '* in the usual way.
Precise description of the lands to be resold is not required in any event.
Vincent v. Roy (1); Ddlisle v. Sauche
A suggestion to the sheriff sufficiently indicating that he was to sell again what he had sold before is all that is necessary; the order was sufficient for all practical purposes.
Morgan for the respondent. The appellant is merely acting in an official capacity and makes the excuse being an opposant afin de conserver to force himself into the record as if he were a creditor and not simply a third party. (Arts. 511, 691 C. 0. P.)
His course is premature and irregular and he is not qualified to demand the resale. Fraser v. Garant As a condition precedent to the present proceedings the sheriff's deed should have been annulled and its registration set aside. (Arts 2148, 2154 C.
Until such declaration of nullity the deed is a complete answer to the motion for folle enchere.
This appeal being only to settle matters of procedure and questions arising in most unique circumstances of practice, ought not to be entertained by this. court. The appellant having disregarded the universal practice of describing in particular terms all lands to be sold, must abide the consequences of his departure from well settled rules of practice and procedure. The order is full.of irregularities.
Besides ordering the resale of the lot withdrawn and which never had been sold and could not possibly be resold under such an order, it fails to mention that over $1,200 were actually paid in cash to the sheriff, and that the adjudicalaire deposited first mortgage bonds for the balance of the price.
It is invalid for its many omissions and V' irregularities; (art. 690 0. P.) ; and it is absurd that the respondent should be held contraignable par corps under an order so very informal and incomplete. The.judgment of the court was delivered by: J.-This appeal raises only a question of procedure in the court below, and consequently the respondent contended that we should not interfere with the judgment appealed from.
But questions of practice cannot be ignored by this court when their decision involves the substantial rights of the litigants, or sanctions a grave injustice. We believe that this is one of those cases.
On the 2nd of June, 1894, the property of The Great Eastern Railway Company, consisting of the line of railway and all its appurtenances, was sold by the sheriff at the suit of Mr. Raymond Pr6fontaine for $20,000.
The line comprised a large number of lots of land situate in several parishes of the district of Richelieu, and among others part of lot 1217 of the parish of St. Thomas de Pierreville.
Before the sale the plaintiff ordered the sheriff in writing to withdraw said lot from the sale. The balance of the property seized was duly adjudicated to the respondent. He did not, however, pay the amount of his adjudication, but deposited an amount sufficient to satisfy the school taxes and the expenses of the sheriff. The latter, therefore, returned to the court that the sum of $19,168.85 was still unpaid and in the hands of the respondent.
Under the pretence that he was the sole hypothecary or privileged creditor of the company he adopted, with the consent of the plaintiff and defendant and other then apparent interested parties, various proceedings for the purpose of obtaining a judgment of distribution in his favour, and in fact did obtain that judgment. It is not necessary to take any further notice of those proceedings, ' as they were subsequently set aside at the suit of the appellant by a judgment of the Superior Court, which Girouard was confirmed in review, and the sheriff was ordered and so far that judgment is jugde between the parties, as no appeal was taken from it. Thereupon, the sheriff made a supplementary report that the money was still in the hands of the respondent, as hypothecary creditor of the railway company, and that he held no security from him for the amount.
Neither the certificate of the registry office, nor any other paper, shows that the respondent was even an ordinary creditor.
His counsel alleges in several papers that he is but these documents were never produced, at least they are not to be found in the printed case; the opposition afin conserver, if ever filed, is not before us. No mention was made by the sheriff that he had previously delivered a deed of sale to the respondent, which acknowledges that the respondent had paid the full amount of his adjudication, first by paying him $1,102.37 in cash, and $18,897.63, as representing so much of the mortgage debentures of the company. The appellant, being afin in his quality of collector of provincial revenue for the province of Quebec, alleged that he was a .creditor for $2,250 and claimed a privilege for $900 of that sum, and finally moved for folle enchire against the respondent under art. 690, and following of the Code of Procedure. The respondent did not contest the claim of the appellant, but allowed the motion for folle enchre to go by default, although duly served upon him, and contented himself with filing of record a copy of the ' sheriff's deed of sale, accompanied by alistor inventaire des productions de l'adjudicataire, which mentions only Gronard J. the said deed. It may be stated here that the said deed does not comprise lot no. 1217.
The Superior Court (Doherty J.), after having heard the appellant only, no mention being made of the respondent, granted the motion for folle enchire, and doth order the issue of a writ of venditioni exponas in order that the property described in the procks verbal of seizure herein may be resold at the folle of said Armstrong, adjudicataire, and that the said adjudicataire may be held by contrainte par corps to the payment of any loss resulting from the resale and the costs of these presents. The Court of Appeal reversed the judgment for the following reasons:
Attendu que le jugement rendu en cette cause par ]a Cour Sup6rieure, le 26 septembre 1595, ordonne la vente h la folle enchbre de Pappelant de la propri6t6 d~crite au procbs verbal de la saisie qui en a t faite et qu'il appert que 1'un des immeubles disign6 au dit procks verbal, savoir : le numbro 1217 du cadastre de la paroisse de St. Thomas de Pierreville, a 6t6 distrait de la dite saisie et n'a jamais th vendu ni achet6 par 1'appelant :
Consid~rant de plus que 1'appelant oppose k la demande de 1'intim6 le titre en apparence rdgulier que le shrif lui a donn6 comme adjudicataire de la propridtd par lui acquise, lequel, parait avoir t dmintent enregistr6 et que Fintimi qui a fait annuler les procidures adopt6es pour Pobtenir n'a pas demand6 ni obtenu Pannulation prialable du dit acte :
Considdrant qu'il y a erreur dans le jugement rendu par la Cour Sup6rieure, etc.
We have no hesitation in holding that the judgment of the Superior Court was right and should be restored : but it should be corrected so as to exclude lot 1217.
It was clearly a mistake easily explained, as the paper withdrawing that lot from the seizure and sale was only left with the sheriff, and was not filed of record in the court, at least at the time it was signed; in fact it is hard to know when it was filed, as even the sheriff's return makes no mention of the same. The respondent has no interest to raise this point, for if this lot be sold it will benefit himself and diminish his liability as adjudicataire, without being in any manner responsible for the validity of the proceeding. As to the sheriff's deed of sale, which has been registered, I look upon it as a mere waste paper, which should be entirely ignored as it was not filed in support of any pleading or proceeding, and as having been issued improperly, illegally or without authority. It was an easy matter for the respondent to obtain, or at least to move for, leave to contest in writing the application for a resale under art. 692 of the Code. This leave seems to have been granted as he was allowed five days to answer, but failed to do so, and even to appear at the hearing before the court. The respondent has admitted before us the nullity of the sheriff's sale, but he contended that, at least by his motion for folle enchire, the appellant should also have prayed that it be annulled. It is too late for him to urge this ground in appeal.
We believe, moreover, that in view of the fact that the sheriff's deed was merely thrown into the case and that the appellant had no notice of it, the court should ignore the same. To permit litigants in default, as this respondent certainly is, thus to take advantage of the irregularities and misdoings of the officers of the court, would be simply to hinder the administration of .justice and destroy the usefulness of courts of law.
We have, therefore, no hesitation in reversing the judgment of the Court of Appeals and restoring the judgment of the Superior Court, with the rectification of the mistake above mentioned, with costs against the respondent before all the courts.
Appeal allowed with. costs. Solicitor for the appellant: C. H. Stephens.
Solicitor for the respondent: E. A.
POWER COMPANY
PARMELIA PARENT 4-C. P.-R.
MOTION to quash an appeal from the decision of the Superior Court, sitting in review at Montreal, affirming the judgment of the Superior Court, district of Montreal, which condemned the appellants to pay $2,000, with interest and costs to the respondent. The respondent sued for $5,000 damages for the death of her late husband which, it was alleged, was caused through the appellant's negligence, but recovered only $2,000 with interest and costs by the judgment in the Superior Court. On an appeal taken by the appellant, the Court of Review affirmed the decision of the trial court with costs. The appeal to the Court of Queen's Bench having been taken away by the amendment to article 1115 of the Code of Civil Procedure (54 Vict. ch. 48, sec. the defendant appealed directly to the Supreme Court of Canada, under the provisions of 54 & 55 Vict. ch. 25, s. s.s. 3.
Charbonneau for the respondent, moved to quash the appeal on the ground of want of jurisdiction, and cited Couture v. Bouchard (1) ; Turrotte v. Dansereau (2); Laberge v. The Equitable Life Assurance Society ; Allan Pratt
R. C. Smith for the appellant contra. The decision in Dufresne v. Gudvremont applies here. The amount of the demande rules where the appeal is dependent upon the amount in dispute.
J.- This is an appeal from the Court of Review, which, it is conceded, lies to this court, under 54 & 55 Vict., ch. 25 (D), only where an appeal lies in the case from the Court of Review to the Privy
Council.
The amount claimed by the declaration is
$5,000, and the judgment of the Superior Court, confirmed in review, is for $2,000.
The appeal is by the defendant.
The respondent moves to quash the appeal on the ground that the judgment being only for $2,000, (and not £500 sterling), the case is not appealable to the Privy Council. That contention cannot prevail.
It is settled by this court in Dufresne v. Gudvremont that whenever the right to appeal to the Privy Council is dependent upon the amount in dispute, such amount must be understood to be that demanded, and not that recovered, if they are different.
In that case the amount given by the judgment appealed from and in controversy on the appeal was sufficient to make the case appealable, but the amount demanded by the declaration was not, and we held that as it is the amount demanded that ruled there was no appeal.
Here, the amount given by the judgment appealed from and in controversy on the appeal is not sufficient TF to make it appealable, but the amount demanded is, and it being the amount demanded that rules the case is appealable.
Now here, the amount demanded is cr over £500 sterling. The case is therefore appealable. We are bound by our previous decision on the point. The motion must be dismissed with costs.
J.
GWYNNE J.-The point raised upon the motion to quash the appeal in this case having been expressly decided by the unanimous judgment of the learned judges of this court who heard the case of Dufresne v. Guivremont it is not necessary that I should state the reasons upon which, but for that judgment, I should feel obliged to arrive at a contrary conclusion in the present case further than this, that I should be opinion that the legislature of the late Province of Canada never contemplated by sec. of ch. of the Consolidated Statutes of Lower Canada which is intituled " An Act respecting the Court of Queen's Bench," and was passed for the purpose of defining the jurisdiction original and appellate of that court, assuming to prescribe any mode by which it should be determined in any case whether the amount in dispute was sufficient to give such jurisdiction to Her Majesty in Her Privy Council to entertain an appeal from the judgment of a court in Lower Canada. So likewise I should have been of opinion that we are not justified in ignoring the judgment rendered in the case of Allan v. Pratt upon the suggestion that that judgment was rendered without due consideration of the sec. of said ch. 77, or without the atttention of the Privy Council having been drawn to it, or that we are justified in entertaining the opinion that the judgment in that case would have been different from