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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baikd v. Field and Others [1869] ScotLR 6_546 (4 June 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0546.html
Cite as: [1869] ScotLR 6_546, [1869] SLR 6_546
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SCOTTISH_SLR_Court_of_Session
Page: 546↓
Court of Session Teinds House First Division.
v.
Facts:
In an appeal under the “Debts Recovery Act,” when the appellant fails to proceed in the appeal, the process falls to be transmitted to the Sheriff-clerk by the Clerk of the Division, without any motion or appearance of the respondent.
This was an appeal under the Debts Recovery Act. The appeal was presented on 12th April last, and on 15th April the process was transmitted to the Court of Session. By section 14 of the Act, in an appeal so taken in vacation, the appellant must, on or before the third sederunt day of the ensuing session, apply by note to the Lord President of the Division to which the appeal is taken, the presenting of which note he shall at the same time intimate by letter to the respondent or his known agent, craving his Lordship to move the Court to send the appeal to the Summar Roll; “provided always that if the appellant shall fall to bring his appeal before the Division by note as aforesaid, he shall be held to have fallen from the same, and the process shall forthwith be retransmitted to the Sheriff-Clerk, and the judgment complained of shall thereupon become final, and shall be treated in all respects as if no appeal had been taken against the same.” No note in terms of this section was here presented by the appellant; and in respect thereof the respondent, by a note to the Lord President, moved that the appeal be dismissed.
Orphoot for respondent.
M'Lean for appellant.
The Court took time to consider.
At advising—
Lord President—The Court have considered the point raised in this appeal, and after consulting with the Judges of the Second Division we have resolved to fix the procedure to be adopted under the 12th, 13th, and 14th sections of the statute. We are all satisfied that the intention of the Act is, that the entering of an appeal shall be a warrant on the Sheriff-clerk to transmit the process, and on the failure of the appellant to proceed as required in section 14 of the statute, it is the duty of the principal clerk in this Court forthwith to retransmit the process to the Sheriff-clerk, without any motion or note being required. The respondent need not appear till the case is in the roll. It is a consequence of this view that we cannot allow the respondent the expense of his appearance in this case.
His Lordship added, that of course these observations applied only to appeals under the Debts Recovery Act, and had no reference to those under the recent Court of Session Act.
No interlocutor was given.
Agent for Appellant— Wm . Miller, S.S.C.
Agents for Respondents— Neilson & Cowan, W.S.