Kelly v Crosdale and M. J. and L. O'Toole

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 01 January 1926
• Date: 01 January 1926

Supreme Court.

Kelly v. Crosdale & O'Toole

KELLY

and

CROSDALE and M. J. and L. O'TOOLE

Practice - Transfer of action - Action commenced in High Court - Transfer to Circuit Court - No affidavit grounding motion to transfer - Whether affidavit necessary - Or. LII, r. 19 - Or. LXXXIX, r. 1 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 22 and 25.

Motion to transfer.

The action was for detinue. An unconditional appearance was entered for two of the three defendants, M. J. O'Toole and L. O'Toole, on April 16th, 1925, requiring a statement of claim. On May 11th, 1925, a statement of claim was delivered, but no defence was filed by the two defendants mentioned. On May 22nd, 1925, a notice of motion to transfer the action for trial to the Circuit Court was served by these two defendants; but the notice did not state the date of filing of the affidavit grounding the motion, nor did it state that a copy of the affidavit was to be served with the notice. No copy of any affidavit was served with the notice of motion. On June 12th an application was made to Meredith J. for an order to transfer the action, but on hearing the preliminary objection made on behalf of the plaintiff that no copy of any affidavit had been served, he adjourned the motion for a week. On June 13th a copy of an affidavit in support of the motion was furnished to the plaintiff. On June 19th the adjourned motion came on for hearing before O'Shaughnessy J.

The defendants appealed to the Supreme Court (1).

A notice of motion to transfer an action from the High Court to the Circuit Court was served by the defendants on plaintiff, but they did not serve a copy of any affidavit in support of the motion. The motion was adjourned, and a copy of an affidavit was served. At the adjourned application plaintiff objected to the motion being heard on the ground that a copy of the affidavit was not served with the notice of motion.

O'Shaughnessy J. held that there was no answer to the objection, and refused the motion with costs.

Held by the Supreme Court (reversing O'Shaughnessy J.), that the motion should have been heard.

Per Kennedy C.J. and Murnaghan J.:—It is not necessary in every case to have an affidavit in support of a motion to transfer under sect. 25 of the Courts of Justice Act, 1924. The pleadings may sufficiently show that the action ought to be transferred.

O'Shaughnessy J. :—There is no answer to Mr. Burne's objection, and I accordingly refuse the motion with...