Byers v Byers

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Docket Number(1926. No. 8675.)

Supreme Court.

(1926. No. 8675.)
Byers v. Byers
JAMES BYERS
Plaintiff
and
JOHN BYERS, Defendant (1)

Practice - Transfer of action - Action commenced in High Court - Trial Judge transferring action of his own motion - No application for transfer made by either party - Validity of Judge's order - No evidence for determining whether order for transfer ought to be made - Appeal - Adjournment of trial following amendment of pleadings - Costs - Rules of the Supreme Court, 1905, Or. LVIII, r. 4 - Courts of Justice Act, 1924 (No. 10 of 1924), sect. 25.

Appeal from an order of Hanna J., dated the 24th November, 1926, transferring the action for trial before the Circuit Court Judge and a jury of the County of Cavan.

The plaintiff brought an action in the High Court for the seduction of his daughter by the defendant, and claiming £500 damages. The action was set down for trial on the 24th November, 1924. On the 18th November, 1926, the plaintiff's solicitors wrote to the defendant's solicitor stating that there was an error in the pleadings as to the date of the seduction, and also as to the date of the birth of the child; to which the defendant's solicitor replied, stating that he was having notice served

on them (the plaintiff's solicitors) asking for particulars of the place where, and the time when, the alleged seduction took place. On the 23rd November, 1926, the plaintiff's solicitors replied, giving the required particulars, and by notice of the same date the plaintiff's solicitors informed the defendant's solicitor that on the trial of the action an application would be made to the Judge to amend the statement of claim as to the date of the seduction and also as to the date of the birth of the child to the dates therein mentioned. The action having come to trial on the 24th November, 1926, before Hanna J., an application was made on behalf of the plaintiff to amend the statement of claim according to the notice given, and this application was granted. At the conclusion of counsel's opening statement on behalf of the plaintiff, and before hearing any evidence, or without any application having been made to him by counsel for either party, Hanna J., of his own motion, transferred the action for trial before the Circuit Court Judge and a jury of the County of Cavan, and ordered that the defendant's costs of amendment, and the defendant's costs and expenses necessarily and properly incurred by reason of the adjournment, including the jury's fee, paid by the direction of the Judge by the defendant's solicitor, be costs in the cause. From this order the plaintiff appealed to the Supreme Court.

An action for seduction having come to trial, after plaintiff's counsel had made his opening statement, the trial Judge (Hanna J.), of his own motion, transferred the action to the Circuit Court, without any application for such transfer having been made to him by either party to the action and without giving them an opportunity of discussing the question of the transfer. Plaintiff appealed:

Held by the Supreme Court, assuming, but without deciding, that Hanna J. had jurisdiction to transfer the action of his own motion, that he ought not to have done so, as he had no evidence before him to determine whether the action ought to be transferred or not, there being nothing in the...

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