Scottish Court of Session Decisions

The Lord Justioe-Clerk delivered the following opinion of the Court:—On the merits of the case we do not differ from the Sheriff, because we are of opinion that there is no corroboration whatever of the pursuer's story. The case, however, involves the question whether, as the respondent has failed to appear, our judgment should not go out by default without the appellant being called upon to establish her case. We have looked into the authorities, and there are two in this Division, the first of which is the case of Stewart v. Stewart, May 16, 1871, 9 Macph. 740, 43 Scot. Jur. 509, in which it was decided that the proper course to follow was in respect of no appearance of the respondent to sustain the appeal. The second case was that of Alder v. Clark, July 8, 1880, 7 R. 1093. In this case the case of Stewart was carefully considered, and the result was that this rule was laid down, that in appeals from the Sheriff Court, where the respondent does not appear, to support the judgment in his favour, the Court will not on that ground sustain the appeal, but will call on the appellant to show cause why the judgment should be altered. There Lord Ormidale mentioned that the Lord President had informed him in a conversation that that was the practice adopted in the First Division. We have also consulted with the head of the Court, and the result is that we now follow the judgment in that case. The matter, then, may now be considered to be finally set at rest.

We therefore dismiss the appeal and affirm the judgment.

The Court dismissed the appeal and affirmed the judgment of the Sheriff.