Winteler v. Davidson

CHIEF :-This is a motion by respondents to quash the appeal for want of jurisdiction. The case is presented upon the following admitted facts.

In June 191, the late Thomas Davidson was condemned by a judgment of the Superior Court to pay to his wife, the present appellant, during her life time, an annuity of $1,500 in quarterly payments of $375. Davidson died in November 1901.

The respondents are his universal legatees ; and the appellant claims the right to execIte against them her said judgment against her late husband for the instalments of her annuity accrued since his death.

A joint case to have her contentions judicially determined was agreed upon between the parties under secs. 509 et seq. of the Code of Procedure, and submitted to the Superior Court in February 1902. After hearing the parties, the Court, in October 1902, upheld the appellant's contention, but the Court of King's Bench reversed that judgment and declared that the respondents were not liable for her said annuity. She now brings the present appeal from that judgment of the Court of King's Bench.

The respondents move to quash it on two grounds:

See also he City of Halifax v. Lithgow (4):-2ndly. That, in this case, the amount originally demanded by the appellant from them, and then in controversy, was less than $2,000 and that, therefore, the case is not appealable, though the amount for the instalments of the said annuity accrued since the date of the submission to the Superior Court would now exceed $2,000.

The motion to quash has to be allowed upon this last ground; it is unnecessary, therefore, to pass upon the first ground.

The statute is clear that as to Quebec appeals when the right of appeal is dependent upon the amount in dispute, as in this case, such. amount must be understood to be the amount demanded and not the amount recovered and in controversy upon the appeal, if they are different. It is not the amount involved that governs but the actual amount originally in controversy in the case between the parfies

Sothat in a case where the amount originally demanded exceeded $2,000, but where the amount recovered was but $100, as we had lately in the case of Coghlin v. La Fonderiede.Toliette, for instance, we have jurisdiction, though the amount in controversy on the appeal is but $100.

And, a converso, in a case where the amount demanded was under $2,000, but the amount in controversy on the appeal here is over that sum, say for accrued interest or, as in this case, for instalments accrued since the date of the action, the case is not appealable.

In both cases it is the amount originally demanded that governs.

Dufresne v. Guevremont (1);

The Citizens' Light & Power Co. v. Parent

Now here, the pecuniary amount of the appellant's claim at the date of the stated case or submission to the Superior Court, three months only after her husband's death, was less than $2,000 and the submission must be taken as an action of that date. Consequently, the amount originally demanded by her being less than $2,000, no appeal lies from the judgment of the Court of King's Bench, though the amount of the instalments of her annuity accrued since her original demand now exceeds $2,000.

. The appellant further contended at bar that her appeal lies on the ground that future rights are involved in the controversy, because, as argued in support of that contention, the judgment of the Court of King's

Bench, irrespectively of amount, will in the future be res judicata against her claim. But the constantjurisprudence of the Court militates against that contention.

An action claiming the right to an annuity is not appealable. In fact, it is not the amount that is in controversy here.

It is the abstract right to the annuity.

The amount would be but the consequence of the judgment if the appellant succeeded in having her judgment against her late husband declared executory against the respondents.

I refer to amongst others:

Chagnon v. Normand (3) ; Rodier v. Lapierre (4) ;

O'Dell v. Gregory (5) ; Macdonald v. Galivan (6); La

Banque du Peuple v. Trottier (7) ; Talbot v. Guilmartin

(1); Comp. Brown v. The Dominion Salvage ana Wrecking Co. v. Brown In re Marois case that is not appealable and a case appealable but not appealed from, are on the same footing as to res judicata. If the simple fact that a judgment is res judicata when any solvendum in futuro is affected by it, made it appealable, an appeal would lie in every such case even where the payments in future would amount to less than $2,000. But that is not so where as in this case the amount in controversy, the debitum in presenti is the criterion of our jurisdiction.

And where rights in future are involved in support of the right of appeal, they must not be., under the authorities above quoted, merely personal rights as the appellant's here clearly are.

FLEISCHMAN

APPEAL from a decision of the Territorial Court of the Yukon Territory refusing to amend the certificate of judgment on application of the defendants.

The action between plaintiffs and defendants was to define the boundary between the plaintiffs' hillclaim and the defendants' creek-claims, under sections 10 and 13 of the placer mining regulations of 18th January, 1898.

The plaintiffs claimed that this should be a line along the surface and established by surface indications.

The defendants claimed that this line should be a line along bed-rock established where bedrock rose three feet above the lowest general level the opposite gulch.

The reasons for judgment of the trial judge established the defendants' claim and the judgment as drawn up contained the following paragraph:

" And it is also adjudged and declared, that the side boundaries of said defendants' gulch-claims, as against the plaintiffs, are lines three feet higher than the lowest general level of the gulch existing on the surface of said claims at the time of plaintiffs' staking." :-Sir The application was to correct the certificate judgment so that the date thereof might read the 5th day of August, 1901, instead of the 26th day of August, and by inserting the words " along bed-rook" between the words " lines " and " three," in the above clause of said certificate

After this judgment was - entered, one Berry bought into the plaintiff's claim knowing, as he admitted at the trial, of the alleged defect in the judgment and wishing to take advantage of it. The Territorial Court refused the amendment as Berry was not before them. The plaintiffs appeale.d.

As to the power of the court to amend, see Wilding v. Sanderson (1); Norris v. Lord Dudley Stuart (2).

Berry was not a bond fide purchaser and the amendment may be made in his absence.

Moreover, it was a matter for the exercise of discretion by the Territorial Court.

Ryan v. Fish The amendment cannot be made in the absence of Berry. Hatton v. Harris (4) ; Gorton v. Hall would dismiss this appeal (assuming that we have jurisdiction to entertain it), on the ground that a motion, like this one, to a court asking that court to vary,. add to, or alter its judgment as entered so as to make it determine what the court intended to determine is particularly within the province of that court, and its ruling 'on such a motion should not be interfered with.

I refrain from adding any other remark, as Berry is not a party to this record and his contentions cannot be passed upon in his absence.

J.-In this case, involving a point local practice, we feel that we cannot interfere, especially as that part of the .judgment sought to be rectified cannot cause any injury to the appellants.

By that judgment the Territorial Court of the Yukon Territory has found that the appellants' claim was " a gulch "

within the meaning of the regulations governing placer mining in the provisional district of the Yukon, approved by Order in Council of 18th January, 1898.

Regulation 10 defines the nature, size and boundaries of such a gulch claim, which cannot be ignored by the court or the parties. There was not in our view any necessity for the motion to amend and it follows that third parties could not set up any claim involving a different interpretation in this case from that which would be applied as between the parties themselves, nor attempt to take possession of an area which, as the court below determined, was to be fixed by clause 10 of regulations. The appeal is dismissed, but under the special circumstances of the case and as the respondents opposed the motion to rectify and occasioned unnecessary costs, it is dismissed without costs in this court and in the court appealed from.

Good faith demands such a conclusion even as to costs in the court below.

and JJ. concurred the reasons stated by Girouard J.

Appeal dismissed without costs.