BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Alder v. Clark and Others [1880] ScotLR 17_740 (8 July 1880)
URL: http://www.bailii.org/scot/cases/ScotCS/1880/17SLR0740.html Cite as:
[1880] ScotLR 17_740,
[1880] SLR 17_740
Subject_1Process Subject_2Appeal Subject_3No Appearance for Respondent.
Facts:
Where no appearance is made for the respondent in an appeal from a Sheriff Court, the appellant is not entitled to have the appeal sustained without showing cause why the existing judgment should be disturbed.
Headnote:
William Dacre Alder, Solicitor, Dumfries, appealed against an interlocutor of the Sheriff of Dumfries and Galloway adhering to an interlocutor of his Substitute in an action of multiplepoinding raised by him against Thomas Clark, innkeeper in Dumfries, and certain creditors of Clark's. The principal copy of the record in appeal had noted upon it an intimation by the Sheriff-Clerk-Depute that notice of the appeal had been sent to the agent for the respondents. When the case was called in the Second Division no appearance was made for any of the respondents, and a letter was produced from one of them to the pursuer stating that on consideration he had “decided not to follow you to the Court of Session.”
The appellant moved that the appeal be sustained in respect of no appearance for the respondents. The Court continued the case that inquiry might be made into the practice. When the case was called the next day the appellant repeated his motion to have the appeal sustained.
He argued—Had this been an appeal from the Sheriff-Substitute to the Sheriff it must have been sustained—39 and 40 Vict. cap. 70 (Sheriff Court Act 1876), sec. 20. It was also a rule of this Court that an appellant was entitled to have his appeal sustained if the respondent was wilfully absent.
Stewart v. Stewart, May 16, 1871,
9 Macph. 740, was a conclusive authority. He also referred to
Macdonald v. Malcolm, Jan. 18, 1870,
8 Macph. 419;
Chisholm v. Marshall, Jan. 17, 1874,
1 R. 388;
Malcolm v. Monro, Feb. 1, 1877,
4 R. 434.
At advising—
Judgment:
Lord Ormidale—Mr Rhind has raised a very important question in this case. It is a point of practice, but if we take his view that he is entitled to have a standing judgment of the Sheriff and Sheriff-Substitute of Dumfriesshire reversed, and a judgment given in his favour, not on the merits, but simply because the respondent has not followed him to this Court, that is a very serious matter; because I quite understand that many cases must occur where the respondent holding a judgment does not think it necessary to be at the expense of coming to this Court in support of his judgment because he is satisfied that the Court will have no hesitation in affirming the judgment. Such cases may often occur, and I am not sure that it is not reasonable to encourage that view instead of asking poor people to come here in a case which has already been heard by two judges; for this reason this Court will always scrupulously consider and examine such a case before reversing these judgments. There is nothing unreasonable in leaving a judgment to defend itself, and we know that the highest tribunal in the realm—the House of Lords—follows that course. An appellant would not be listened to there who asked for judgment in his favour because the respondent had not followed him thither. That House has established that an appellant must show cause why the existing judgment should be disturbed, and that will be required more completely before the judgment is touched, just because there is nobody on the other side. It seems reasonable that we should do the same. It would be monstrous that because a respondent is satisfied with the judgment he has obtained, and does not come here to defend it, we should sustain the appeal and leave him to go to the House of Lords to get redress. The case of
Stewart certainly seems an authority for Mr Rhind's contention, but singularly enough in the report of that case, which is very short, the circumstances are not explained, and it was not stated by any judge that in the decision the Court were following any rule of practice or were laying down any rule for the future. The case may very likely have been disposed of in special circumstances, and special cause may have been shown. I do not think we should hold it to be a rule of this Court to be universally applied. I am more than confirmed in the view I have expressed by the opinion of the Lord President, under whose notice I have brought this matter. His view was that in a case where there is no appearance for a respondent the Court will not give the appellant what he wants simply in respect of non-appearance on the other side, but will make him show cause why the judgment should be altered. I have therefore no hesitation in over-ruling this preliminary objection.
Lord Gifford—I should have had considerable difficulty in refusing Mr Rhind's request if there had been shown to be any practice, supported by a series of decisions, in favour of his contention, or if in any of the cases cited it had been stated that there was any such practice. But no such practice has been proved, and I can only say that I entirely concur in the views expressed by your Lordship. The case of
Stewart is no doubt an authority on the subject, but if it was intended there to lay down any general rule the report nowhere says so. It is argued that there is a general rule that an appellant can ask and obtain anything he pleases if he has no contradictor appearing by counsel and agent. I think that the section of the Sheriff Court Act of 1876 which Mr Rhind quoted in support of that rule tells rather against him. We know that is certainly not the rule in the House of Lords, and it seems to me to be a startling proposition to say that we are to act more rigidly than they act in the Superior Court. Nor can I see on principle why any such rule should exist. The judgments appealed from are good standing judgments, and must remain so until cause is shown for reversing them. I do not see that we are bound to put a man who holds a good judgment, or two good judgments as in this case, to the penalty of losing his case unless he employ counsel. I think we can only reverse judgments such as these on cause shown.
Lord Rutherfurd Clark—I must confess that I rather understood the practice to be as Mr Rhind has stated it. For the last few years, however,
Page: 741↓
I have had no opportunity of seeing the practice of the Court as to appeals. I have never thought the practice, if practice there was, a reasonable one. I think it a most proper rule to introduce that a party to a suit who holds a judgment should not lose it simply because he does not follow the appellant to this Court. An appellant mast, before he can succeed, show cause why the interlocutors appealed from should be altered.
The
Lord Justice-Clerk and
Lord Young were absent.
The Court then heard the appellant on the merits, and in the result recalled
hoc statu the interlocutors complained of.
Counsel:
Counsel for Appellant—
Rhind. Agent—
W. Officer, S.S.C.
