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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Peters v. Magistrates of Greenock [1893] ScotLR 31_10 (6 July 1893)
URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0010.html
Cite as: [1893] ScotLR 31_10, [1893] SLR 31_10

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SCOTTISH_SLR_Court_of_Session

Page: 10↓

Court of Session Inner House Second Division.

Thursday, July 6. 1893.

31 SLR 10

Peters

v.

Magistrates of Greenock.

Subject_1Process
Subject_2Superfluous Procedure
Subject_3Petition to Apply Judgment of House of Lords Affirming Interlocutory Judgment.
Facts:

The defender of an action reclaimed against an interlocutor of the Lord Ordinary which was not final. The Inner House adhered. The defender appealed to the House of Lords, who affirmed the judgment appealed against, and ordered the defender to pay the costs of the appeal. The costs of the reclaiming-note and of the appeal were paid by the defender. Thereafter a petition presented by the pursuer, praying the Court to apply the judgment of the House of Lords, to find the defender liable in the expenses of the application, and to remit to the Lord Ordinary to proceed further in the cause, dismissed as unnecessary without expenses to either party— diss. Lord Young, who was of opinion that the defender should be found entitled to the expenses incurred by them in appearing to oppose the petition.

Headnote:

This case is reported ante, vol. xxix. p. 507, and 19 R. 643, and ante, vol. xxx. p. 937.

This was an action raised by the Rev. David Smith Peters against the Magistrates of Greenock to have it found and declared that the defenders were bound to furnish him with a competent and legal stipend, and to have the defenders decerned and ordained to make payment to him of a certain sum as arrears of stipend prior to Martinmas 1890, and also of the sum of £400 per annum, or such other sum as should appear to the Court as competent and legal stipend from and after the said term.

On 23rd June 1891 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor—“Finds, declares, and decerns in terms of the first declaratory conclusion of the summons: Quoad ultra appoints the cause to be enrolled that parties may be heard as to the petitory conclusion, and reserves all questions of expenses: Grants leave to reclaim.”

Against this interlocutor the defenders reclaimed, and on 16th March 1892 their Lordships of the Second Division pronounced the following interlocutor—“Refuse the reclaiming-note and adhere to the interlocutor reclaimed against: Find the pursuer entitled to expenses from the date of said interlocutor: Remit to the Auditor to tax the same and to report: Quoad ultra remit the cause to the Lord Ordinary to proceed therein as accords, with power to decern for the taxed amount of the expenses now found due.”

The expenses found due to the pursuer were taxed at £68, 10s. 1d., for which sum the Lord Ordinary pronounced decree by interlocutor dated 28th May 1892.

Page: 11↓

Against these three interlocutors the defenders appealed to the House of Lords, but on 18th May 1893 their Lordships affirmed the interlocutors appealed against, dismissed the appeal, and ordered the defenders to pay to the pursuer the costs of the appeal.

The costs of the appeal and the expenses of the reclaiming-note decerned for by the Lord Ordinary's interlocutor of 28th May 1892 were paid to the pursuer by the defenders.

Thereafter the pursuer presented a petition to the Court, stating—“The said interlocutors of 23rd June 1891, 16th March 1892, and 28th May 1892 were not final, and did not exhaust the cause, which now falls to be remitted by your Lordships to the Lord Ordinary to proceed therein, as accords,” and praying the Court “to apply the said judgment of the House of Lords; to find the respondents the Provost, Magistrates, and Councillors of Greenock liable in the expenses of this application and procedure to follow hereon; to remit to the Lord Ordinary to proceed further in the cause as may be just.”

The defenders objected to their being found liable in the expenses of the application, and submitted that the petition was unnecessary.

At advising—

 Judgment:

Lord Young—My own opinion is that this petition is quite unnecessary. I do not say that it is incompetent, but I think it is unnecessary and superfluous. The proper course in a case like this—for it is the simplest and the least expensive—is for the party who has succeeded in the House of Lords to enrol the case before the Lord Ordinary to proceed. My opinion further is, that as this petition with its prayer for expenses against the respondents has been unnecessarily presented, the respondents, who have been forced to discuss the application, should be found entitled to expenses. It is a familiar rule that a party appearing to oppose an unnecessary application is found entitled to expenses.

Lord Rutherfurd Clark—I think the petition is unnecessary, but I am not prepared to award expenses to either party.

Lord Trayner—I agree with Lord Rutherfurd Clark.

The Lord Justice-Clerk was absent.

The Court dismissed the petition without expenses to either party.

 Counsel:

Counsel for Petitioner — M'Lennan. Agents— Miller & Murray, S.S.C.

Counsel for Respondents— Sym. Agents— Cumming & Duff, S.S.C.

 1893

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URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0010.html