Stephenson v. Gold Medal Furniture Mfg. Co.

Before the amendment, to 2(e) of the "Supreme Court Act," R.S.C. judgments were rendered maintaining an action on bond which two of the defendants were ordered to pay to the plaintiffs an amount not exceeding that secured the bond to be ascertained upon reference to the master and further directions were reserved; to another fendant, recovery of the same amount, to be ascertained in the same manner, was ordered, but there was no reserve of further directions.

Upon an appeal the last mentioned defendant, Held, Davies J. dissenting, that the judgment sought to be appealed from 'Man. R. did not finally conclude the action as proceedings still remained to taken on the reference, consequently, it was not a final judgment within the meaning of tion 2(e) of the "Supreme Court Act," prior to. the amendment the statute & Geo. V., (assented to on the 6th of June, and it was not competent to the Supreme Court ,Canada to entertain the appeal.

The Rural Municipality farris v. The London and Canadian Loan and Agency Co. (19 *PRESEXT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.

MOTION to quash an appeal by the defendant Tena Stephenson from the judgment of the Court of Appeal for Manitoba (1), reversing the judgment of Metcalfe J., at the trial, by which nonsuit was entered in the action against her, and declaring her liable for the amount of a bond executed by her in favour of the plaintiffs.

The action was on a guaranty by the defendants which had been given to secure the respondent company the indebtedness then existing and the future indebtedness of the Stephenson Furniture Company towards the plaintiffs to the extent of $2,600. The guaranty purported to be signed by the defendants James Albert Stephenson, his wife, Tena Stephenson, and by William Stephenson and Margaret Stephenson, father and mother of James Albert Stephenson. At the trial the defendants moved for a nonsuit which was granted in respect to Tena Stephenson and Margaret Stephenson and judgment was entered against William Stephenson and James A. Stephenson with a reference to the master to take the accounts and ascertain the amount, if any, due by the Stephenson Furniture Company to the plaintiffs.

By the judgment now appealed from, rendered on the 17th of March, 1913 (prior to the amendment of sec. 2(e) of the "Supreme Court Act," R.S.C. 1906, ch. 139, by the statute 3 & 4 Geo. V. ch. 51, defining the words "final judgment") the judgment against James A. Stephenson and William Stephenson was affirmed without variation, but the judgment dismissing the action as against Tena Stephenson was reversed and the action against her maintained for the amount, if any, not exceeding $2,600, which, on a reference to the master to take accounts, etc., should be found to be due to the plaintiffs by the Stephenson Furniture Company. As to Tena Stephenson there was no reserve of further directions in the judgment appealed from.

IV. L. Scott, contra, distinguished the cases cited in support of the motion, and relied upon Em parte loore(4) to shew that the judgment appealed from was a final judgment in regard to Tena Stephenson and that, without any further action by the court, execution could issue against her as soon as any liability was determined upon the master's report becoming absolute.

CHIEF JUSTICE.-The motion to quash should be granted. Ex parte Moore has been considered; The Rural Municipality of Morris v. The London and Canadian Loan and Agency Co.(2) is followed. DAVIES J. (dissenting).-The judgment appealed from adjudged that the judgment allowing a nonsuit as against Tena Stephenson be reversed and that the above respondent company should and do recover judgment against her

There was nothing said about "further directions." In my opinion this judgment comes within the rule and principle determining what are "final judgments" laid down in the case of Ex parte Moore (1), and is not at variance with any of our previous decisions in cases where further directions are reserved.

I would, therefore, dismiss the motion to quash the appeal.

J.-Of the many decisions going to shew that the judgment herein is not a final judgment within the meaning of the "Supreme Court Act," as it stood when this appeal was taken, the case of The Rural Municipality of Mlorris v. The London and Canadian Loan and Agency Co. (1) seems to cover the exact con- Hf]TURE tention set up by Scott in resisting the motion to quash herein which, it seems to me, must prevail with costs.

J.-This is not an action in the nature of a suit in equity within section 38(c) of the "Supreme

Court Act."

It is an ordinary common law action to enforce liability on a bond. In order to establish jurisdiction in this court to entertain her appeal, the appellant must successfully maintain that the judgment against which that appeal is taken is a "final judgment" within the definition of that term in the

"Supreme Court Act."

That judgment was pronounced on the 17th of

March, 1913.

Under a series of decisions (Hyde v. Lindsay(2); Cowen v. Evan8 (3); Hurtubise v.

De8marteau(4) ; Taylor v. The Queen(5)) it is clear that whatever right of appeal to this court the appellant had when judgment was given against her by the Court of Appeal has not been affected by the subsequent amendment of the "Supreme Court Act"

changing the definition of a final judgment, which was assented to on the 6th of June, 1913.

But, in answer to the motion to quash the appeal on the ground that the judgment against the appellant, Tena Stephenson, is not a final judgment, it is urged that, inasmuch as by that judgment further sTHENsoN directions are not reserved and under it execution may issue without any further action by the court, so soon as the amount of the liability has been deter- Anglin mined by the master's report becoming absolute (Man. K.B. Rules, Nos. 683, and 692), this case is distinguishable from such cases as Clarke v. Goodall(1), and The Crown Life In8. Co. v. Skinner (2).

In the trial court judgment was awarded against two of the defendants, James Albert Stephenson and William Stephenson, in these terms:- And it is further ordered and adjudged that the plaintiffs do recover judgment against the defendants James Albert Stephenson and William Stephenson for the amount, if any, due by the Stephenson Furniture Company, Limited, to the plaintiff not exceeding the sum of twenty-six hundred dollars ($2,000), being the amount mentioned in the guarantee sued on herein and that it be referred to the master of this honourable court to take the accounts and ascertain the amount due the said Stephenson Furniture Company, Limited, to the plaintiff.

And this court doth further order and adjudge that the said James Albert Stephenson and William Stephenson do pay to the plaintiff its costs of this action.

And this court doth further order and adjudge that further directions and the costs of the reference reserved until after the master shall have made his report.

On appeal, that judgment was affirmed without variation.

As against Tena Stephenson the action had been dismissed at the trial, but, on appeal, this part of the judgment of the trial judge was reversed and judgment was rendered against Tena Stephenson in the following terms:- That the appellant, the above named plaintiff, should and do recover against the defendant Tena Stephenson for the amount, any, due the Stephenson Furniture Company, Limited, to the plaintiff not exceeding the sum of $2,600, and that it referred to the master of the Court of King's Bench to take the accounts and (1) Can. S.C.R.

44 Can. S.C.R. It is difficult to understand why, as a result of the judgment of the Manitoba Court of Appeal, further directions should have been reserved in regard to her co-defendants and not in regard to Tena Stephenson, the liability found in each case being, apparently, the same in every respect.

The difference was probably due to mere inadvertence; buit that may not safely be assumed.

I agree with the appellant's contention that, upon the judgment as entered, execution may issue against her as soon as the master has made his report and it has become confirmed without any further order or direction of the court. Moreover, she is not met with the difficulty which would have presented itself had the judgment in appeal been rendered by the appellate court for Ontario, that, until the amount of the liability is determined there is nothing to shew that it will reach the appealable figure (see Wenger v. Lamont(1). There is no monetary limitation on the right of appeal in Manitoba cases.

But, although it would be eminently unsatisfactory that an appeal should be entertained by this Court from a judgment under which it may be, for aught that appears before us, that nothing will ultimately be found to be due by the appellant (the master is to find the amount of the liability of the principal debtor, any), I would be disposed to accept her contention that the judgment rendered against her in the FUNIE Manitoba Court of Appeal is final within such authorities as Ex parte Moore(1) ; Re Alexander (2) ; Bozson ~v.

Altrincham Urban District Council(3), and that it would be appealable to this court if "final judgment" -had not been defined in our statute as it was before the amendment of 1913. The judgment against the appellant is similar to that sometimes rendered in the English King's Bench Division for an amountto be ascertained by an official referee; see Snow's Annual Practice, 1913, page 675.

A similar judgment rendered in the Exchequer Court would be final for the purpose of appeal to this court under section 82 of the "Exchequer Court Act" (R.S.C. 1906, ch. 140), which provides that

But, in contrast to this special provision applicable only to appeals from the Exchequer Court, from which, as a final court, this court is the immediate appellate tribunal, we had, before the recent amendment, a declaration in the "Supreme 'Court Act" that in the cases of appeals from the provincial courts, which normally come to this court only after the judgment of the court of first instance has been dealt with 'by a provincial appellate court, final judgment shall mean

The action against the present appellant is not concluded by the judgment of the Court of Appeal. In that action, the reference proceedings are yet to be taken and it may be that there will be a series of appeals from the findings of the master. Further proceedings in the action are necessary before it can be J. said to be "concluded" before there will be a judgment in it enforceable against the appellant. I am, for these reasons, of the opinion that the judgment against which this appeal is taken is not final within the definition of final judgment in the "Supreme Court

Act" as it stood prior to the recent amendment.

The motion to quash should be granted with costs.

J.-I concur in the opinion of Mr. Justice Anglin.

Appeal .quashed. with costs.

& Newcombe.