Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907, section 27, and First Schedule, Rule 33, and the Sheriff Courts (Scotland) Act 1913, section 5, are quoted supra in rubric.

John Usher Davison, wholesale provision merchant, London, pursuer, brought an action in the Sheriff Court of Lanarkshire at Glasgow against Mrs Emily Lamb Anderson, wife of Stewart Anderson, Glasgow, as principal, and her husband Stewart Anderson as guarantor, jointly and severally or severally defenders, for payment of two sums of principal contained in an indenture of mortgage between the parties, and the interest thereon.

On 19th June 1908, in respect that no appearance had been entered by the defenders, decree was pronounced against them jointly and severally as craved.

In October 1920 the defender Stewart Anderson presented a reponing note, which on 29th October 1920 the Sheriff-Substitute (A. S. D. Thomson) refused.

The defenders appealed to the Sheriff ( A. O. M. Mackenzie), who on 14th December 1920 recalled the interlocutor of the Sheriff-Substitute, dated 29th October 1920, complained of, recalled the decree in absence of date 19th June 1908, and remitted the cause to the Sheriff-Substitute to proceed.

The pursuer thereupon asked leave to appeal, and on 20th December 1920 the Sheriff refused the motion.

Note.—“Rule 33 of the Sheriff Courts Act 1907, provides that any interlocutor or order recalling a decree in absence shall be final and not subject to review. In view of the terms of that rule, I doubt whether I could, by granting leave to appeal, make an appeal against my interlocutor reponing the defender competent, but in any case the rule appears to me to afford a very clear indication against the propriety of granting leave to appeal in such a case.”

On 31st December 1920 the pursuer appealed to the Court of Session.

The defender having objected to the competency of the appeal the pursuer argued—The present appeal was competent because there had been an excess of jurisdiction on the part of an inferior judge— Allen & Sons Billposting, Limited v. Corporation of Edinburgh, 1909 S.C. 70, 46 S.L.R. 65; Smith v. Rennie, 1919 S.C. 705, 56 S.L.R. 606; Brooke v. Marchioness of Huntly, 1911, 49 S.L.R. 71 per Lord President (Dunedin) at p. 72. The appeal from the Sheriff-Substitute to the Sheriff was incompetent. The present action was a pending action at the time that the Sheriff Courts (Scotland) Act 1913 (2 and 3 Geo. V, cap. 28) came into operation. By section 5 of that Act it was therefore excepted from the operation of that Act. It fell therefore under section 27 and Rule 33 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) according to which the Sheriff-Substitute's judgment on the reponing note was final. The provision for an appeal to the Sheriff from a judgment of the Sheriff-Substitute refusing a reponing note was only made by the Act of 1913. The Sheriff had therefore no jurisdiction to deal with that question, and having acted in excess of his jurisdiction the present appeal to the Court of Session was competent. No doubt a reduction on suspension would also have been competent but the pursuer was not limited to these methods of review. Even if the Sheriff had jurisdiction his judgment was wrong, because he had recalled the decree in absence in toto, whereas all the statute allowed him to do was to recall it so far as not implemented.

Argued for the defender—The appeal was incompetent. The present action was not a pending action at the commencement of the Sheriff Courts (Scotland) Act 1913—Mackay's Manual p. 226; Allan v. Wormser, Harris, & Company, 1894, 21 R. 866, per Lord Rutherford Clark at p. 874, 31 S.L.R. 698; Cropper v. Smith, 1884, 54 L.J., (Ch.) 287. It was therefore not excluded by section 5 of that Act from its operation. The amendments introduced by that Act therefore applied, and accordingly under section 27 of the Sheriff Courts (Scotland) Act 1907, as amended by the Sheriff Courts (Scotland) Act 1913, the appeal to the Sheriff from the interlocutor of the Sheriff-Substitute refusing the reponing note was competent. But if it was competent, then the Sheriff had acted within his jurisdiction and Rule 33 of the Sheriff Courts (Scotland)

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Act 1907, on which the Sheriff founded in refusing leave to appeal to the Court of Session, applied. Section 28 as amended by the Act of 1913 only allowed such appeals to the Court of Session where the reponing note was refused. Even, however, if the Sheriff had exceeded his jurisdiction the provisions of the Court of Session Act 1810 (50 Geo. III, cap. 112) section 36, allowing appeals on the ground of defect of jurisdiction, were repealed by the Second Schedule of the Sheriff Courts (Scotland) Act 1907 so far as these provisions related to the Sheriff Court. Smith v. Rennie, cit. sup., where it was held that such an appeal was competent, was based on the ground that quoad Dean of Guild Court proceedings section 36 was still in force. There was no inherent power at common law to sustain such appeals. In Allen & Sons Billposting, Limited v. Corporation of Edinburgh, cit. sup., the point was conceded, and in that case the Sheriff was not exercising his ordinary jurisdiction. Again, in Harper v. Inspector of Rutherglen, 1903, 6 F. 23, 41 S.L.R. 16, a special statutory jurisdiction was involved. Further, even assuming that the Act of 1907 applied and the Act of 1913 did not, an appeal from the Sheriff-Substitute to the Sheriff was competent. An interlocutor refusing a reponing note was a final interlocutor as defined by the Sheriff Courts (Scotland) Act 1907 section 3 ( h) and being final, was appealable.