Judgment of the Court
J.-This case is before us on a motion to quash, heard yesterday.
The respondent's action was begun on the 15th April, claiming possession, under mortgage; premises occupied by the appellant.
Upon the appellant not filing any statement of defence judgment was entered against him on the 7th May, 1896.
The appellant then moved before the Master in Chambers to have the said judgment set aside and for leave to defend the action.
On the 27th May, 1896, the master dismissed that application.
The appellant then appealed from the master's order to Mr. Justice Meredith, who, on the 8th of June, 1896, dismissed the appeal.
Then, a further appeal was taken to the Divisional Court and likewise dismissed on the 24th of October, 1896
An appeal to the Court of Appeal met with the same fate on the 30th June, 1897 (4). From this last judgment the defendant now brings this appeal.
The respondent's contentions are that this court cannot entertain it, 1st. Because there is no final judgment to be appealed from, within the meaning of the words "final judgment " in the Supreme Court Act; and 2ndly. Because the judgment appealed from was an order in the discretion of the court, and consequently not appealable to this court under section 27 of the V'
- The respondent relies upon the authority of The adian Loan and Agency Co. to support his contention that the judgment appealed from here is not a final judgment. That case, though not precisely a similar one, seems to strongly support his views. See Maritime Bank v. Stewart (2); In re Cahan (8); McGugan v. McGugan ; Williams v. Leonard
Gladwin v. Cummings (6) is more directly in point. But if there were any doubt on this branch of respondent's argument, there seems none possible under the other point, as to the judgment falling under sec. 27 of the Act, which prohibits appeals in matters of discretion. That an order of this kind is a discretionary order is unquestionable.
I refer to the cases cited in Holmsted & Langton under sec. 65 of the Judicature Act, and under rule 796 ; also to Cusack v. London and North- Western Railway Co. and to the cases cited in Snow's Practice of 1896, p. 584.
The giving leave to appear or plead after judgment has always been treated as a discretionary order, using the word " discretionary " always, of course, as not at all meaning "arbitrarily;" Nelson v. Thorner (8); Collins v. .Hickok
1 refer also to Mr. Justice Patterson's remarks on this point in the case of The Rural Municipality of Morris v. The London and Canadian Loan and Agency Co.
If the Court of Appeal had granted the defendant's motion, the plaintiff would have had no right to appeal to this court. Papay-