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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v. Sorter [1869] ScotLR 6_536 (28 May 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0536.html
Cite as: [1869] ScotLR 6_536, [1869] SLR 6_536
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SCOTTISH_SLR_Court_of_Session
Page: 536↓
Court of Session Inner House Second Division.
v.
Facts:
Held (1) that promulgation of an interlocutor in the diet-book of Court is a proceeding in the cause in the sense of the 15th section of the Act 16 and 17 Vict. c. 80; (2) that a minute lodged by the parties, in which one craved after the expiry of three months revival of the action, and the other did not object, was equivalent to a waiver of expenses, winch again was equivalent to payment of expenses in the sense of the statute.
This was an appeal from the Sheriff-court of Banffshire, and involved a question as to the construction of the 15th section of the Sheriff-court Act (16 and 17 Victoria, c. 80), which provided as follows;—“Where, in any cause, neither of the parties thereto shall, during the period of three consecutive months, have taken any proceeding therein, the action shall at the expiration of that period eo ipso stand dismissed, without prejudice nevertheless to either of the parties within three months after the expiration of such first period of three months, but not thereafter, to revive the said action, on showing good cause to the satisfaction of the Sheriff why no procedure had taken place therein, or upon payment to the other party of the preceding expenses incurred in the cause whereupon such action shall be revived and proceeded with in ordinary form.”
The Sheriff ( Bell) had in this case pronounced an interlocutor, which was dated 25th May, but which was not promulgated by entry in the diet-book of Court till 1st June. From that time down to the 30th November no proceeding took place in the cause; but on 30th November a minute was lodged by the parties in the following terms;—“Upwards of three months having elapsed since the date of the last interlocutor in this case, it has fallen asleep; the pursuer respectfully craves, the defender not objecting, that your
Page: 537↓
Lordship will be pleased to waken the same, and to renew the order contained in the interlocutor of 29th January 1868.” The Sheriff-substitute ( Gordon) having considered the minute, pronounced the following interlocutor:—“ Banff., 30 th November 1868.—The Sheriff-substitute having considered the minute tendered for the pursuer, and whole process,—Finds that the last interlocutor is dated 25th May 1868: Finds that no steps have been taken by either party in the cause for six months after the date of that interlocutor, therefore Finds that the action stands dismissed, in terms of the Act 16 and 17 Vict. cap. 80, section 15, and decerns. One word deleted.
“ Note.—The minute for pursuer is of no avail in keeping the process alive. The only argument urged by his procurator was, that he had frequently asked the defender's procurator to return the process, that he had failed to return it, and that it had been returned on 28th current under threat of caption. This is certainly no good cause of delay for six months, and the Substitute could not, even if the minute had been lodged within the six months, have renewed it except under the penalty of paying the pursuer's expenses of process. The process is without doubt out of court.” The pursuer appealed.
The Sheriff ( Bell) pronounced the following interlocutor:—“ Edinburgh, 30 th December 1868.—The Sheriff dismisses the appeal and decerns.
“ Note.—The last interlocutor preceding the one appealed against was pronounced on 1st June 1868. This was a proceeding by the Sheriff, and may, possibly, have been even a proceeding taken by the parties who would be in court and receive the judgment. As to this the Sheriff forms no opinion. But no proceeding followed until long after 2d September. From that date, at any rate, the process stood eo ipso dismissed; 16 and 17 Vict, c. 80, sec. 15. Thereafter the question was no longer one of keeping alive, but of reviving the action. This can only be done on payment of full expenses within three additional months, or on showing good cause to the satisfaction of the Sheriff why no procedure had taken place therein. What is exacted is sufficient cause, not why the process should be revived, but why no procedure has taken place. The Sheriff did not formerly think that consent extorted at the last moment was sufficient to establish that there had been sufficient and satisfactory cause existing during nearly the entire period of six months, but he has a difficulty in justifying his previous views since the decision of the case of Macintosh, 10th November 1863. He will presently state why he doubts whether he has any power to deal with the present interlocutor at all. But if he had power, he should be inclined to think that the case of Macintosh ought not to be pressed beyond what was actually decided. Now, in the case of Macintosh there was express consent to revive the process. In the present case full consent was refused until 15th December 1868, before which six months and two weeks had elapsed. On 30th November the partner of the respondent's agent, indeed, signed the minute, No. 9; but he altered it for the very purpose of expressing that, although he did not object, he at the same time did not consent. And upon the appellant's own showing the agent did this just because he knew nothing at all about the case. Thus, on two points the case differs unfavourably from that of Macintosh. Consent, which ruled Macintosh's case, was here conclusively refused until after the six months had elapsed. The mere non-resistance here conceded was something short of proper consent; and even if full consent had been given by an agent's partner, who at the same moment explained that he knew nothing whatever about the case, the Sheriff cannot understand how anything written by a gentleman who knew nothing whatever about any point in the procedure during the previous six months could possibly be received by any Sheriff, as a sufficient showing of cause why things had gone on in the course they had followed during the whole six months, which that gentleman knew nothing about. If the Sheriff, therefore, had been a judge of the cause shown, he would probably have decided that it was not sufficient. But the Sheriff-substitute has considered this matter amongst others. It is not the sole ground of his judgment, and he has not put it into the interlocutor. But in the note he says, inter alia, expressly ‘there is certainly no good cause of delay for six months, and the Substitute could not, even if the minute had been lodged within the six months, have revived it, expect under the penalty of paying the pursuer's expenses.’ The Sheriff-substitute, therefore, although he has not made it a part of his interlocutor, has assigned it as one of the grounds of his interlocutor that parties had failed to show sufficient cause either beyond or within the six months. And this being so, review is excluded by the decision Macdowall, 13th July 1805.”
The pursuer appealed to the Court of Session.
Shand for him.
Mackenzie and Mackintosh in answer.
At advising—
The Sheriff, judging from the statement in his note, is of opinion that the proper date to be taken into computation is not the 25th May, but the 1st June, and he says “the last interlocutor preceding
Page: 538↓
He has done so because the Sheriff-substitute, in a note appended to his interlocutor, intimates an opinion that no sufficient cause had been shown why a six months' delay should have occurred, and because the step taken was not of a nature of itself to satisfy the requirements of the Act. He has, in dealing with the case, omitted to recognise the plain distinction between findings in an interlocutor and opinions and views expressed in the note appended to it. If he thought the 1st June the proper date, he should have sustained and not dismissed the appeal against his Substitute's judgment, and pronounced a judgment embodying his own views of the case.
The first point which we have to determine, is, whether the date from which the commencement of the six months is to be the 25th May or the 1st June. I am very clearly of opinion that the latter date is the one to be regarded. The object of the provision was to impose a penalty upon parties who unduly delayed to take steps in a cause during a particular period. These parties could not be in default while they had no intimation of the interlocutor, nor even possessed means of ascertaining its existence. An interlocutor signed by the Sheriff in Edinburgh on one day might possibly not be transmitted to his county till a good many days thereafter. The interlocutor itself, till placed in the hands of the Clerk of Court or notified, remains subject to the entire control of the Sheriff who proved it, and might be cancelled or altered. To take the date of an interlocutor subscribed in Edinburgh, as to which the parties knew nothing, and could know nothing, till the 1st June, as regulating the computation of a period of delay followed by the penal result of a dismissal of the cause, would be in plain contradiction to the spirit of the provision, and is not in any way supported by its literal construction. The statute does not fix the date of an interlocutor as that at which the currency of the period is to commence to run, but simply provides—“that where neither of the parties shall have taken any proceeding therein during three consecutive months, the process should stand dismissed,”—an expression which, literally read, would make the date anterior to avizandum, and so include the period of the Sheriff's consideration of the cause, but which, sensibly and rationally construed, must be held to mean that parties who fail to take steps when they might and ought to have done so, shall have the process dismissed.
We have the evidence of the date on which the interlocutor was promulgated to the parties in the Act Book of Court, which has been transmitted to us, and in this respect what was done was in accordance with the practice of the Court. The Sheriff deals with it in his note as dated on June 1. I do not find that the Sheriff-substitute attested this particular entry, or any series of entries of which it formed part, but the book is regularly kept, and the entry is in the hand of the clerk, and the entry is that of an act, not a decree of court.
In that view, on the 30th November, and so within the six months, a motion was made by the pursuer to have the case revived. The procurator for the defender subscribed the minute as “not objecting” to that motion. It was not made, so far as the minute bears, on any ground of special cause shown for the delay; though, from the note appended to the interlocutor and the explanations stated to us, it may be gathered inferentially that something had been said as to the process having been transmitted to a process of declarator touching the same watercourse between different parties in the Court of Session. With this special supposed cause of delay we have no occasion to deal, and, indeed, we have no materials for forming an opinion. It is contended that the decision of the Sheriff-substitute, holding that there was no good cause, is as final in such case as his being satisfied as to good cause was found to be in the case of M'Dowall. We have here no judgment by the Sheriff-substitute at all upon that matter, and the case, as presented by the appellant, does not rest at all on the supposed existence of a good cause for delay, but on the fact that he made a motion within the six months, which the Sheriff-substitute was bound under a right construction of the Act forthwith to have granted. Six months had nearly elapsed, but the motion was made within that time, and the words of the Act are— (reads).
It is only in one alternative that the separate question of good cause of delay to the satisfaction of the Sheriff arises. For the Sheriff, in the other alternative of payment of expenses, must pronounce an interlocutor reviving the cause, if either party pay to the other the expenses incurred in the preceding part of the cause. It is not possible, according to any rational construction of the Act, to say that the right of the party seeking to revive the action shall depend upon the mere fact of payment within the six months. That construction would give an absolute and capricious veto to the other party against the revival, because he might decline to let the amount of his expenses be known, or he might refuse to receive payment, though they were ascertained, preferring to get the action dismissed. The actual payment within the six months could scarcely be intended to be indispensable for this reason, also, that however willing both parties might be, delays incident to taxation; the occupation of the auditor of Court, or otherwise, might throw the period of possible payment beyond the six months. It can scarcely be contended that the one party must pay without taxation to the other, whatever may be demanded of him in name of expenses. If actual payment is not within the meaning of the Act, a tender or bona fide expression of a readiness to pay expenses, followed out by payment at the earliest possible time, whether within or without the six months, must be sufficient. But if the other party is satisfied to ask no expenses, to waive his clear right to have them ascertained and paid to him, is not the position one in which the Sheriff, who certainly cannot enforce payment of expenses to a party who is unwilling to receive them, is really placed by the parties in the same position as if the payment of the money had been made? That question must be assumed to have been settled between them. Your Lordships, in the case of Macintosh, have held that a consent to a motion to revive implies a waiver of the claim of expenses, and that, upon such consent being given, the action may be revived. The only distinction in the present case is, that on the 30th November, and within the six months, the motion made for revival was not objected to, full consent being given after they had expired; a consent which may throw light upon the previous proceeding.
Page: 539↓
I do not see that there is any substantial difference in this matter between the consent in the case of Macintosh and the non-objection of the respondent in this case; as regards a claim for expenses, I think the expression of a waiver of any objection to the pursuer's craving necessarily implied a waiver of the objection that the expenses had not been paid—in other words, a waiver of the claim for expenses as a condition of revival. It is difficult to figure what a party could mean, who stated that he did not object to a motion for revival of the cause simpliciter, if he did not mean that his claim for payment of expenses which was his statutory right was not to stand in the way. I view this case as ruled by the case of Macintosh. If another view were taken, and the Sheriff were to hold that no waiver was implied; then, as the motion certainly implied a tender of the expenses, the Sheriff might have found the defender entitled to them, and directed an account to be given in and taxed. In either view, there was no case for a dismissal of the process. I propose, therefore, that we sustain the appeal, and remit to the Sheriff to revive the process, and to proceed further therein as may be just.
The other Judges concurred.
Agent for Appellant— A. Morrison, S.S.C.
Agents for Respondent— Gibson—Graig, Dalziel, & Brodies, W.S.