Masterson v Scallan

• Jurisdiction: Ireland
• Judgment Date: 26 April 1927
• Date: 26 April 1927
• Court: Supreme Court (Irish Free State)

Supreme Court.

Masterson v. Scallan

ELIZABETH MASTERSON

and

JOHN J. SCALLAN and MARY SCALLAN

Practice - Summary summons - Affidavit to be served therewith - Verifying cause of action - Supplemental affidavit - Liberty to use - Affidavits not filed - Authenticity of copy of Rules - Rules of the Supreme Court,1905, Or. LXXXIX, r. 1 - Rules of the High Court and Supreme Court,1926, Or. XV, rr. 1, 4, 5.

Summary Summons.

The plaintiff's claim, specially endorsed, was for £40 18s. 4d. for rent up to and ending 1st April, 1927, of premises, No. 2 Corrig Avenue, Dun Laoghaire, in the County of Dublin, due by the defendants to the plaintiff under an agreement, dated 28th May, 1925.

The summary summons was served on the 25th January, 1927, together with an affidavit sworn by Michael Cartan O'Meara, solicitor, a member of the firm of Cartan O'Meara and Kieran, the plaintiff's solicitors, stating that "the sum of £40 18s. 4d., being the sum for which the plaintiff seeks judgment, is now actually due by the defendants to the plaintiff over and above all just and fair allowances. The said firm of solicitors act as agents for the plaintiff, and I am aware of my own knowledge that the amount claimed is due." Service of the summons with the affidavit was accepted by the defendants' solicitor on the 31st January, and an appearance was entered on the 9th February. On the 22nd February notice was given to the defendants of the setting down of the summons for hearing before the Master on the 1st of March, pursuant to Or. XV, r. 1, of the Rules of the High Court and Supreme Court, 1926 (1).On the 1st March, when the summons came before the Master for hearing, the defendants applied for an adjournment, and asked for leave to file an affidavit dealing with a matter then in question. This application was granted, and the case adjourned to the 8th of March. On that date it was again adjourned by the Master, at the request of the defendants, to the 11th of March. When the case came before the Master for hearing on the 11th of March an objection was taken, for the first time, on behalf of the defendants, that the affidavit that had been served by the plaintiff's solicitors with the summary summons was not a sufficient compliance with Or. XV, r. 1. After hearing the arguments the Master transferred the case to the Judge's list, pursuant to Or. XV, r. 4, with the following Memorandum:—

"This summary summons for £40 18s. 4d., a claim for rent under Or. III, r. 1 (i), of the Rules of the High Court and Supreme Court, 1926, was set down for hearing before me on the 1st instant, and was adjourned to the 8th instant, and again to the 11th instant, on the application of the defendants on each occasion. Mr. Murphy, for the defendants, raised the preliminary objection for the first time on the 11th instant, that the affidavit served with the summons was not in compliance with the provisions of Or. XV, r. 1, and did not 'show that the plaintiff was entitled to the relief claimed,' relying upon the recent decision of Hanna J. in Caulfield v. Bolger andCaulfield v. Roche(2).

Mr. Fitzpatrick, for the plaintiff, relied upon the provisions of Or. LXXXIX, r. 1, of the Rules of the Supreme Court, 1905, and contended that the defendants were estopped from now making the objection on the ground of a mere irregularity, as they had previously, on two occasions, applied for an adjournment. Mr. Fitzpatrick also argued that the entering of an appearance by the defendants had cured any irregularity.

Mr. Murphy admitted that he had no merits, but relied upon his technical rights.

I was of opinion that the affidavit did not 'show that the plaintiff was entitled to the relief claimed' within the meaning of Or. XV, r. 1, although the affidavit required by Or. XV, r. 3, 'verifying the claim endorsed on the summons' must apparently be fuller than that mentioned in Or. XV, r. 1.

I considered that I had no jurisdiction to adjourn the proceedings for a fuller affidavit under Or. XXXVIII of the Rules of the High Court and Supreme Court, 1926, or otherwise, and as the question involved was one of principle important to solicitors, I placed the case in the Court List for determination:—

(1) As to the meaning of the words 'showing that the plaintiff is entitled to the relief claimed.'

(2) If the affidavit was insufficient, was it an irregularity only, or did it amount to a nullity?

(3) If it were an irregularity only, had same been 'cured' by the appearance entered by the defendants?

(4) Had the defendants by their application for an adjournment on two occasions waived their right to raise the preliminary objection?—Gerald Horan, Master. 14th March, 1927."

On the 12th March a further affidavit on behalf of the plaintiff was sworn, in which the agreement made between the parties was set out, the payment of the rent by the defendants to the plaintiff up to the 30th September, 1926, was stated, and the particulars of the rent due were given, together with the facts as to the service of the summons, &c.

On the 18th March the case came on for hearing before O'Byrne J.

The defendants appealed to the Supreme Court (1).

Plaintiff issued a summary summons, specially endorsed, claiming £40 18s. 4d. for rent. With it she served on the defendants an affidavit which merely stated that the sum of £40 18s. 4d., being the sum for which she sought judgment, was actually due by the defendants to her, over and above all just and fair allowances. When the summons came before the Master for hearing the defendants obtained an adjournment. They subsequently obtained a second adjournment. When the summons finally came before the Master, the defendants raised, for the first time, the objection that the plaintiff's affidavit was not sufficient to comply with Or. XV, r. 1, of the Rules of the High Court and Supreme Court, 1926, which required an affidavit "showing that the plaintiff is entitled to the relief claimed" to be served with the summons. The Master...