Meehan v Tynan

• Jurisdiction: Ireland
• Judgment Date: 14 December 1914
• Date: 14 December 1914
• Court: King's Bench Division (Ireland)

Meehan

and

Tynan (1).

K. B. Div.

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.

Practice — Application by Personal Representative for Liberty to issue Execution — Application made on Notice — Order XLII, Rule 24.

Where a judgment creditor dies after judgment, an application by his personal representative for leave to issue execution should be made ex parte. The practice as to when applications under Order XLII, Rule 24 (a), should be ex parte and when on notice, stated.

Motion on Notice.

Application on behalf of the executors of the plaintiff for leave to issue execution. Judgment was marked on the 13th January, 1903. On the 12th February, 1913, the plaintiff obtained leave to issue execution, notwithstanding that more than six years had elapsed since the judgment. The plaintiff afterwards died, and his executors now applied, by motion on notice to the defendant, for leave to issue execution under Order XLII, R. 24.

Lupton, for the applicants:—

The application is made under Order XLII, Rule 24, for liberty to issue execution, the plaintiff having died.

[Gibson J.:—Should not the motion be made ex parte?]

In Rule 24 (a) no distinction is made between lapse of time and change of parties. In the notes to that rule at p. 614 of Wiley's Judicature Acts, the practice is stated to be by motion on notice served for a particular day, on the authority of Devitt v. M'Coy (2) and Furlong v. Furlong (3). It is submitted that the practice, except in special circumstances, is to apply by motion on notice.

There was no appearance for the defendant.

Cur. adv. vult.

Lupton, for the applicants:—

Gibson J.:—

A question of practice has been raised by Mr. Lupton in this case, relying on a passage in Wylie's Judicature Acts, p. 614, to the effect that in all cases where leave to issue execution under Order XLII, Rule 24, is necessary, the application should be made on notice. As it is stated that there is some uncertainty as to the practice in such cases, and as to costs, my brother Boyd and I have considered the matter with care, and our conclusion is as follows:—

The point was discussed in The National Bank v. Cullen (1), where the Lord Chief Baron gave an instructive judgment as to the various cases where leave to issue execution has to be applied for.

1. Where a judgment creditor dies, probate or letters of administration are...