Seales v McSweeney

• Jurisdiction: Ireland
• Judgment Date: 01 January 1944
• Date: 01 January 1944
• Court: Supreme Court

Seales v. McSweeney

KATHARINE SEALES

Plaintiff

and

KATHLEENMcSWEENEY, Defendant (1)

Supreme Court.

Practice - Summary summons - Amendment - Defective indorsement of claim - Action adjourned for plenary hearing - Jurisdiction of High Court to allow amendment of summons - Rules of the High Court and Supreme Court, 1926, Or. XV, r. 5.

Where an action, properly instituted by summary summons, is adjourned for plenary hearing, pursuant to Or. XV, r. 5, of the Rules of High Court and Supreme Court, 1926, the Court has jurisdiction to permit the plaintiff to amend the summons by stating the capacity in which he sues.

So held by the Supreme Court, reversing Haugh J.

Appeal and Cross Appeal.

The plaintiff, Katharine Seales, appealed from an order of the High Court (Haugh J.) refusing her application to amend the indorsement to her summary summons by adding particulars of the capacity in which she sued.

The defendant, Kathleen McSweeney, appealed from that part of the same order which directed that the action should stand adjourned for plenary hearing as if commenced by plenary summons.

The action was instituted by a summary summons, issued on the 19th January, 1943, wherein the plaintiff claimed the sum of £424 6s. 11d., "being balance due by the defendant to the late Peter M. Seales, solicitor, in respect of moneys advanced to, or moneys paid on behalf of, the defendant by the said Peter M. Seales, and moneys paid on behalf of the defendant by the plaintiff, the said Kathleen Seales, as per particulars annexed." The particulars set out in the indorsement commenced with an item, dated the 31st March, 1927, of £197 6s. 5d. claimed as "balance due on account furnished this date": this was followed by items in respect of each subsequent year for advances or payments alleged to have been made on behalf of the defendant, including one of £50, dated the 19th January, 1937, described as "cheque to you—further advance."

The plaintiff was in fact the widow and sole executrix of the will of the said Peter M. Seales, deceased, who had died on the 30th day of January, 1937. The summons did not state these facts or refer to the capacity in which the plaintiff sued, nor did the particulars distinguish between sums claimed as owing to the estate of Peter Seales, deceased, and sums claimed as being due to the plaintiff in her personal capacity.

An appearance was entered by the defendant and affidavits were filed by both plaintiff and defendant.

The first...