Meares v Connolly

• Jurisdiction: Ireland
• Judgment Date: 14 March 1930
• Date: 14 March 1930
• Docket Number: (1930. No. 390.)
• Court: High Court (Irish Free State)

Meares v. Connolly.

GEORGE M. MEARES

Plaintiff

and

M. CONNOLLY

Defendant.

(1930. No. 390.)

Practice - Summary summons - Special indorsement - Action for recovery of land - Tenancy determined by notice to quit - Right to serve notice dependent upon happening of contingency - Incorrect procedure - No power of amendment by the Court - Rules of the Supreme Court (Ir.),1905, Or. III, r. 6 - Rules of the High Court and Supreme Court, 1926,Or. II, r. 3; Or. III, r. 1 (ii); Or. XV, r. 5.

The plaintiff issued a summary summons claiming possession of certain rooms in a house, whish, by an agreement in writing, the plaintiff had set to the defendant from year to year, the tenancy having been determined by a notice to quit. The notice to quit was given in pursuance of a proviso in the agreement whereby the tenancy could be determined by a notice to quit when the rent was in arrear.

Held that procedure by summary summons is not applicable in an action for the recovery of premises founded on a notice to quit, where the right to give the notice depends upon the happening of a contingency.

Held further that the Court had no power to amend the summary summons and allow the action to proceed as if commenced by a plenary summons, and accordingly the case must be struck out, with costs.

Keating v. Mulcahy, [1926] I.R. 214, applied.

Summary Summons.

The plaintiff issued a summary summons, the special indorsement of which was as follows:—

"Special indorsement of claim.

The plaintiff is entitled to possession of the two rooms on the second floor and three rooms on the third floor of the house, No. 19 Kildare Street, in the Parish of St. Ann, and City of Dublin, which were, by agreement in writing, dated the 14th day of October, 1925, let by the plaintiff to the defendant as tenant from year to year from the 1st day of November, 1925, which said tenancy was duly determined by notice to quit expiring on the 18th day of January, 1930. The plaintiff claims possession of the said premises."

The defendant entered an appearance "without prejudice to a defence on the ground that the manner in which the proceedings have been brought is improper, irregular, or not according to law; and, further, without prejudice to a motion to remit."

The plaintiff, in his affidavit, made in pursuance of Or. XV, r. 2, of the Rules of the High Court and Supreme Court, 1926 (as amended by Order made on the 14th April, 1927), to show that he was entitled to possession, stated that the...