Judgment of the Court
J.-The appellant was the defendant in the Superior Court at Three Rivers in an action by the respondent on two promissory notes instituted September 26th, 1888.
The service of this action on the appellant, it is conceded, was absolutely illegal. It was served upon a third party, not at the appellant's domicile, and though the documents eventually reached the appellant, (when and whether before or after the return of the writ does not appear) yet he had the right to disregard it and treat it as a nullity. Over a year afterwards, on 19th October, 1889, the iespondent had a judgment entered ex parte against the appellant. The respondent never attempted to execute her judgment, and on the 25th April, 1892, the appellant filed an opposition to the judgment, asking, inter alia, that the said judgment be set aside, on the ground that he, the appellant, had never been duly served with the action; art. 16 0. C. P. He, however, went further in the opposition and alleged his grounds of defence to the merits on the action; and it is on this ground, because he had joined the rescissoire to the rescindant, that the court below has dismissed the opposition.
The other ground relied upon by the Superior Court, that the opposition had not been filed within a year- and a day after the judgment as required by article 483 of the Code of Procedure, is clearly untenable. The law cannot be so unjust as to peremptorily bind any one to exercise a right before he is in a position to be possibly aware of that right. 1 Pigeau, (ed. 1787) p. 490; 1 Poncet, " Des Jugements," nos. 152, et seq. Now as to the ground on which the respondent mainly relied to support the judgment of the court below, the joining of the rescissoire with the rescindant, to which I have already referred, I am of opinion that the appellant must succeed, and that the judgment must be reversed.
I fail to see any reason whatever for the rule which must have been the one followed by the court below, that if an opposant to judgment wrongfully mixes up the rescissoire with the rescindant, his opposition must, on that ground alone, be dismissed. The insufficiency of a litigant's allegations may be fatal to his claim, but if he alleges more than is necessary, or adds to a legitimate demand conclusions which he is not entitled to, that is no reason to reject the whole of his demand. It is a contradiction in any one to ask that a judgment be set aside because he has not been served with the action, and at the same time, to conclude by a plea to the merits of the action. He is not bound to plead at all to an action which has not been served upon him.
He may certainly waive the want of service but the appellant here has not done so.
The articles 483 and following of the Code of Procedure have no application.
They are enactments cases where judgment has been rendered by default, where the defendant was in default to appear or to plead.
But how can a party who has not been summoned be said to be in default for non-appearance? Merlin, Rep. vo. "Opposition," par. The judgment here was rendered against the respondent, only because he appeared by the return of the bailiff to have been summoned, but now that, as it is conceded, this was a false return, a return the judgment falls to the ground as an inevitable consequence, the moment at any time, were it ten years or twenty years afterwards, that the defendant invokes that nullity, not having waived it in any way.
The respondent obtained a judgment against the appellant upon false representations upon her bailiff's return which now turns out to have been untrue.
Can such a judgment be supported? She would vainly rely on the merits of her claim. That is not in question here. It is not on her claim, or on the appellant's liabilities, that we have to adjudicate here, but exclusively on the judgment she has obtained against the appellant.
And that judgment cannot stand.
This appellant's opposition should not be defeated on technicalities and it is on technicalities exclusively that the courts below have found reasons to dismiss it.
No judgment can be legally entered on promissory notes under articles 89 and following of the Code of Procedure, as this one assumes to have been, if the defendant is not in default to appear or to plead, and he cannot be in default if he has not been summoned. The plaintiff, respondent, has obtained this judgment against the appellant upon a false bailiff's return; that falsity now being established that judgment must be set aside. And the appellant has the right to have it set aside, without alleging or establishing that he has a good defence to the action ; the respondent is not entitled to ask that from him, not having served the