Scottish Court of Session Decisions

On 2d December 1875 the pursuers in the present action raised an action of reduction against the defenders in the present case. The Lord Ordinary dismissed that action by interlocutor dated 27th January 1876, on the ground of informality in the summons, and allowed an account of expenses to be given in, remitting to the Auditor of Court to tax the same and report. On the 28th January the summons in the present action, for reduction of the same judgment as that for reduction of which the former summons concluded, was signeted, and was executed on 29th January and 3d and 9th February 1876. It was called on 17th February 1876.

The defenders pleaded lis alibi pendens.

The Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 18 th May 1876.—The Lord Ordinary having heard the counsel for the parties on the record closed on the summons and preliminary defences, sustains the defender's plea of lis alibi pendens: Dismisses the action, and decerns: Finds the pursuer liable in expenses to the defenders: Appoints an account thereof to be lodged, and remits the same to the Auditor to tax and report.

Note.—The pursuer on 2d December 1875 raised against the present defenders an action of reduction of the decree of judgment which is again sought to be reduced in the present action. In the former action an interlocutor was pronounced by the Lord Ordinary on 27th January 1876, finding that the summons was informal, dismissing the action, and finding the defenders entitled to expenses, and remitting their account to the Auditor for taxation. That interlocutor was not reclaimed against, and the account was taxed on 22d February 1876, but no decree for these expenses has yet been pronounced. The former action is therefore still a pending process. See Aitken v. Dick, 7th July 1863, 1 Macpherson, 1038.

“The summons in the present action was signeted on 28th January, and was executed on 29th January and 3d and 9th February 1876, and was called on 17th February 1876, all during the dependence of the former action. It is with reluctance that I give effect to such a purely technical objection as the plea of lis pendens is in the circumstances of this case, but the case of Aitken v. Dick, and the opinions of the Judges in the case of Campbell v. Blackwood, 7th November 1862, 1 Macpherson, p. 1, appear to me to be conclusive of the question, and I am therefore constrained to sustain the plea, and dismiss the present action, with expenses.”

The pursuer reclaimed, and argued:— The tendency of legislation and of practice since Aitken v. Dick has been in the direction of disregarding technicalities and dilatory pleas such as lis alibi pendens. Besides that there was no action here; the judgment decided that it was merely a simulated action, and no process in reality. This, although a technical argument, may fairly be argued against a technicality. Then the pursuers are willing to lodge a minute abandoning all right of appeal in the former action, and by that means to bring themselves under the principle of the case of Taylor v. The Glasgow, Paisley, and Ardrossan Canal Company, 15 Dunlop, 14.

At advising—