Crane & Sons v Wallis

• Jurisdiction: Ireland
• Judgment Date: 27 October 1915
• Date: 27 October 1915
• Docket Number: (1915. No. 4890.)
• Court: Court of Appeal (Ireland)

Crane & Sons

and

Wallis (1).

Appeal.

(1915. No. 4890.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Judgment — Irregularity — Setting aside — Action for Return of Specific Goods — No Appearance entered — Judgment for Return of Goods — No Affidavit of Service of Writ filed — Non-compliance with Rules — Order XIII, Rules 2, 8 — Order LXXXIX, Rule 1 — Ex parte Application — Necessity for utmost Good Faith.

The defendant having failed to enter an appearance to a writ of summons claiming the return of specific goods, the plaintiff applied ex parte to a judge under Order XIII, Rule 8, for an order for the return of the goods. No affidavit of service of the writ had been filed as required by Rule 2 of Order XIII. The judge's attention was not drawn to the fact that such affidavit had not been filed, and he made an order for judgment against the defendant for the return of the goods.

Held, that the filing of an affidavit of service was essential to give jurisdiction to make the order; that the non-filing of such affidavit was not a mere non-compliance with the rules which could be remedied under Order LXXXIV, Rule 1; and that the order must be set aside.

The rule is well settled that there must be the utmost good faith on ex parte applications.

Appeal by the defendant from an order of the King's Bench Division made by Kenny J., refusing to discharge an order made by Pim J. under Order XIII, Rule 8, for the return of goods detained.

The plaintiffs had issued a writ against the defendant on the 29th April, 1915, claiming the return of a “Majestic Organ,” or its value, and damages for detaining the same. No appearance was entered by the defendant, and on the 29th June the plaintiffs applied ex parte to the Court for an order for the return of the organ. The application was grounded on an affidavit of Mr. John H. Wakefield, manager of the plaintiffs' firm in Dublin, filed on the 28th June. The only statement in this affidavit as to the

service of the writ was as follows:— “I refer to the writ of summons issued in this case, and which was served personally on the defendant, George S. Wallis, on Monday, the 10th day of May, 1915, to which writ I am informed by my said firm's solicitors and believe that no appearance has been entered by the said defendant.” No affidavit except this had been filed by the plaintiffs. The application was heard by Pim J., who made an order for judgment against the defendant for the return of the organ within two days after service of the order. The attention of the judge was not called to the fact that no proper affidavit of service had been filed.

A copy of the order was served personally on the defendant on the 20th July, 1915, and he applied by notice of motion to the Kings Bench Division to have it set aside and discharged for irregularity, on the ground that an affidavit of service of the writ of summons was not filed before the plaintiffs applied for and obtained the order. The application was grounded on an affidavit of his solicitor, Mr. Richard Connolly, who stated that as a result of a search in the office of the King's Bench Division it appeared that no affidavit of service of the writ of summons had been filed. An affidavit in answer was made by the plaintiffs' solicitor, in which he stated that as the defendant was the civil-bill officer for the district in which he resided he sent the original writ and a copy to Mr. Connolly on the 29th April, asking him to have it served on the defendant, and that he received a letter from Mr. Connolly, dated the 11th May, stating that he had served the writ on the defendant himself, and returning the original writ with particulars of service duly endorsed. The application to set aside the order of Pim J. was heard by Kenny J. on the 29th July, 1915, and was refused with costs.

The defendant served notice of appeal to the Court of Appeal, asking that the order of the King's Bench Division of the 29th July, 1915, might be reversed, and the order of Pim J. discharged for irregularity, on the grounds mentioned in the defendant's notice of motion on which the order of the 29th July, 1915, was made.

John O'Byrne, for the appellant:—

The order of Pim J. was made under Rule 8 of Order XIII. But it is a necessary preliminary to taking any proceeding under this Rule that an affidavit of service should be filed as provided by Rule 2 of the same Order, and no such affidavit was ever filed. Order XXXVIII, Rule 9, provides that every affidavit of service shall state “when, where, and how, and by whom, such service was effected, and in case of delivery to any person, shall state that the deponent was at the time of such delivery acquainted with the appearance of such person,” It cannot be suggested that Mr. Wakefield's affidavit is an affidavit of service within the meaning of the Rules. The terms of Order XIII, Rule 2, are precise, and the Court has no power to dispense with them: Ford v. Miescke (1). The judgment here was obtained irregularly, and in such case the defendant is entitled ex debito justitiae to have it set aside: Anlaby v. Prœtorius (2). Where proceedings are taken by default there must be at every stage a strict compliance with the rules: Hamp-Adams v. Hall (3), per Vaughan-Williams L.J., at p. 944. This is a matter strictissimi juris: ib., per Buckley L.J., p. 945. In that case the Court held that the omission to endorse the date of service on the writ of summons was not an irregularity which could be waived under Order LXX, Rule 2, of the English rules, corresponding with our Order LXXXIX, Rule 1. The omission to file an affidavit of service is a much graver defect than the omission to endorse the date of service on the writ. In the absence of such an affidavit the Court has no jurisdiction.

The application to Pim J. was made ex parte, and his attention should have been called to the fact that no affidavit of service had been filed, in which case he certainly would not have made the order.

F. W. Price for the respondent:—

By Order LXXXIV, Rule 1, non-compliance with any of the rules is not to render the proceedings void, unless the Court or a judge shall so direct. In the present case it is not denied that the

defendant was duly served with the writ of summons, and Kenny J. was right, in the...