Hope v Roots

CourtHigh Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Hope v. Roots

Practice - Transfer of originating summons - Transfer to Circuit Court - Jurisdiction - Courts of Justice Act, 1924 (No. 10 of 1924), sects.22, 25.

Motion to transfer an originating summons. Plaintiff, by his summons, claiming to be a mortgagee of the dwelling-house and premises known as No. 11 Sion Hill Avenue, Harold's Cross, Dublin, applied for an order (1) that the sum of £210 principal and the sum of £48 13s. 5d. for interest from 15th August, 1921, to 26th June, 1925, and further interest until payment might be declared well charged on the leasehold interest of the defendant in the said dwelling-house and premises, held under an indenture of lease, dated 3rd August, 1925, under and by virtue of an indenture of mortgage, dated 26th June, 1922, made between the defendant of the one part and the plaintiff of the other part; (2) that an account be directed as to what sum was due to the plaintiff by the defendant on foot of the said indenture of mortgage for principal and interest, and such further inquiries as might be necessary; (3) that the amount found due on taking the said account might, in the event of the same not being paid, be realized by a sale of the said house and premises; (4) that if necessary a receiver might be appointed; and (5) that the costs of the application might be provided for. The affidavit of the plaintiff in support, and affidavits by the defendant in reply, are not material for the purposes of this report.

The summons coming on for hearing, the plaintiff applied for an adjournment to enable him to serve on the defendant a formal notice to transfer the proceedings to the Circuit Court, and this adjournment was granted. Subsequently the plaintiff served a summons on the defendant "to have all the proceedings in this action transferred to the Circuit Court at Dublin," both parties to the action residing within the jurisdiction of the said Circuit Court.

Plaintiff issued an originating summons to raise the amount due by defendant under a mortgage deed. The hearing of the summons was adjourned to enable plaintiff to serve an application to transfer the proceedings to the Circuit Court. On the adjourned hearing:

Held, that there was no jurisdiction to transfer the proceedings to the Circuit Court, as an originating summons when served is a document in the nature of a pleading and a notice of trial, and under sect. 25 of the Courts of Justice Act,...

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