Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0502.html
Cite as: [1877] SLR 14_502, [1877] ScotLR 14_502

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SCOTTISH_SLR_Court_of_Session

Page: 502↓

Court of Session Inner House Second Division.

Sheriff of Lanarkshire.

Saturday, May 12.

14 SLR 502

Walker

v.

Reid.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Printing — Act of Sederunt, March 10, 1870.
Facts:

Circumstances in which the Court repelled an objection to the competency of an appeal that the provisions of the above Act of Sederunt had not been complied with, in respect of a failure to print timeously.

Headnote:

By Act of Sederunt of March 10, 1870, passed in terms of the authority to that effect contained in the Court of Session Act of 1868, it is provided as follows in reference to the procedure in appeals:—Section 3, sub-section 1—“The appellant shall during session, within fourteen days after the process has been received by the Clerk of Court, print and box the note of appeal, record, interlocutors, and proof, if any, unless within eight days after the process has been received by the Clerk he shall have obtained an interlocutor of the Court dispensing with printing in whole or in part; … and if the appellant shall fail within the said period of fourteen days to print and box or lodge and furnish the papers required as aforesaid, he shall be held to have abandoned his appeal, and shall not be entitled to insist therein except on being reponed as hereinafter provided.”

By sub-section 2 provision is made with regard to appeals during vacation.

By sub-section 3 it is provided that it shall be lawful for the appellant, “within eight days after the appeal has been held to be abandoned as aforesaid, to move the Court during session, or the Lord Ordinary on the Bills during vacation, to repone him to the effect of entitling him to insist in the appeal, which motion shall not be printed except upon cause shewn, and upon such conditions as to printing and payment of expenses to the respondent or otherwise as to the Court or the Lord Ordinary shall seem just.”

By sub-section 5 it is provided—“On the expiry of the said period of eight days after the appeal has been held to be abandoned as aforesaid, if the appellant shall not have been reponed, … the judgment or judgments complained of shall become final, and shall be treated in all respects as if no appeal had been taken against the same.”

This was an appeal taken against a judgment of the Sheriff of Lanarkshire, and was received by the Clerk of Court on the 12th March 1877. The appellant did not print or box any papers within the fourteen days allowed by the Act of Sederunt, and he did not apply for an order to dispense with printing. The fourteenth day expired in vacation. The appellant allowed the period of eight days after the expiry of the fourteen days to expire without applying to be reponed. On the first box-day in vacation the appellant printed and boxed the whole papers.

On the appeal appearing in the Single Bills the respondent objected to the competency—( Park v. Weir, 15th Oct. 1874, 12 Scot. Law Rep. 11.)

Page: 503↓

It was not disputed that the failure to print in time had been an innocent omission on the appellant's part.

At advising—

Judgment:

Lord Young—The Act of Sederunt is merely a rule of Court, and it is in the power of the Court to relieve from the penalties it provides. If the Act of Sederunt implied an ipso facto forfeiture of the statutory right of appeal, without motion or interlocutor, so as to exclude the discretion of the Court in the matter, the Act of Sederunt is clearly ultra vires of the Court. In the present case there is no suggestion of delay for an improper purpose, or of the respondent being put to the slightest inconvenience. In Park v. Weir the First Division had no doubt exercised a reasonable discretion in refusing to allow the appellant to proceed, but the circumstances of that case are not fully reported. I am therefore for repelling the objection to the competency of the appeal.

Lord Gifford—I concur. In Park v. Weir the appeal process had been retransmitted to the Sheriff Court.

Lord Ormidale—I concur in the result at which your Lordships have arrived, but I cannot assent to the view expressed by Lord Young as to the binding effect of the Act of Sederunt. I do not think, however, that the present case is provided for in terms by any sub-section of the Act of Sederunt. The appeal in this case was received in due course in session time, and the period of printing expired in vacation. I do not think that case is provided for.

The Court reponed the appellant.

Counsel:

Counsel for Appellant— Mair. Agent— J. Wilson, L.A.

Counsel for Respondent— Lang. Agents— Macrae & Flett, W.S.
1877