Scottish Court of Session Decisions

At advising—

Lord President—In this case the Sheriff-Substitute on 10th March 1881 pronounced an interlocutor which disposed of the whole merits and found the present appellants liable in expenses. That interlocutor was affirmed by the Sheriff on 31st March, who found the same parties liable in the expenses of the appeal to him, “to be taxed and decerned for along with the other expenses.” I have no doubt that that is, within the meaning of the Acts of Parliament, a final judgment. This interlocutor was extracted on 21st April, and on the extracted decree the successful claimant obtained payment of the money which bad been consigned to meet his claim, to the amount (with interest) of £221, 15s. 2d., as appears from the consignation receipt in process. After that his account of expenses was audited and taxed, and the Sheriff-Substitute on 2d May decerned for the taxed amount.

Mr and Mrs Tennent have now appealed. The appeal was noted on 16th May, that is, just within the fourteen days from the decree for the taxed amount, and objection has been taken to the competency of the appeal.

It is contended, in the first place, that a final judgment having been extracted and implemented by payment of the consigned money, it is no longer possible to bring it under review; and, in the second place, that an appeal against a decree for expenses is inoperative and incompetent, because a decree for expenses follows as a matter of course on a final judgment which has been extracted.

The appellant, on the other hand, contends, that having brought his appeal within fourteen days of a decree for expenses, that decree is competently brought up on appeal, and so brings up all the previous interlocutors.

I have great difficulty in sustaining this appeal to any effect. Mr Rhind contended that the extract was here incompetent, because the proceedings were not at an end, and the claimant should have waited till expenses had been decerned for before procuring extract; and if he is right in that view there is a great deal to be said for the competency of this appeal. But it appears to me that that question was set at rest by section 32 of the Sheriff Court Act of 1876, which provides that “Notwithstanding anything contained in section 68 of the Court of Session Act 1868, extract of any judgment, decree, interlocutor, or order pronounced in the ordinary Sheriff Court may be issued at any time on the expiration of fourteen days from the date thereof, unless the same shall, if competent, have been sooner appealed against, and no extract of any such judgment, decree, interlocutor, or order shall be issued before the expiration of fourteen days from the date thereof, unless the Sheriff or Sheriff-Substitute who pronounced the same shall allow the extract to be sooner issued.” Now, this is a very unqualified provision; and if fourteen days have elapsed from the date of any judgment which is extractable, then I think extract of it must be competent. In the present case fourteen days had elapsed, because the extract was on 21st April, and the interlocutor of the Sheriff was on 31st March. I think, therefore, that under that section of the statute extract was competent and proper; and so it follows that this appeal cannot be taken, for there is no appeal against an extracted judgment.

The interlocutor on the merits being therefore not subject to appeal, the question comes to be whether there is any appeal here at all. To bring up a decerniture for expenses, to the effect of letting the appellant get into a review of the interlocutors on the merits, would be, I think, by a mere evasion to set at naught the provisions of the Acts of Parliament. I think, therefore, it is impossible to sustain the competency of this appeal to that effect. Then if there is only a decerniture for expenses, that is not an interlocutor subject to appeal. In Cruickshank v. Smart (5th Feb. 1870, 8 Macph. 512) Lord Deas expressed his opinion that a decree for expenses is not subject to appeal, and I concurred in that opinion, though not entering so fully into the question.

On both grounds I think this appeal must be dismissed as incompetent.

Lord Deas—I am of the same opinion. I think this extract was competent and proper; and I have always had the opinion that a decree for expenses is not subject to appeal.

Lord Mure—I concur. I think the provision of the Act of 1876, taken in connection with former practice, is conclusive. The Act of Sederunt of 10th July 1839 does not appear to me to affect the question at all.

Lord Shand—I am of the same opinion. By the statute which regulated these matters before the Act of 1876 an appellant had twenty days from the date of a final interlocutor within which no extract could be issued. The 1876 Act abridged this period, and parties may now obtain extract within fourteen days. The result is that if the successful party chooses to take extract he excludes appeal, and I think this case is important as pointing that out. Practitioners in the Sheriff Courts should take notice that if they desire to appeal they must do so within fourteen days from the date of a final interlocutor, though expenses have not been decerned for in the Court below.