The State (Hunt) v Circuit Court Judge of The Midland Circuit

• Jurisdiction: Ireland
• Judgment Date: 31 July 1934
• Date: 31 July 1934
• Court: Supreme Court (Irish Free State)

Supreme Court.

The State (Hunt) v. Judge of Midland Circuit.

THE STATE (at the Prosecution of PATRICK HUNT)

and

THE CIRCUIT COURT JUDGE OF THE MIDLAND CIRCUIT

Circuit Court - Jurisdiction - Decree against executor de son tort to be executed de bonis propriis - Validity - Form of decree against executorde son tort - Jurisdiction conferred by Civil Bill Courts (Ir.) Act, 1851,and transferred to Circuit Court - Jurisdiction vested in Circuit Court by Courts of Justice Act, 1924 - Method of exercising vested jurisdiction- Certiorari - Whether decree of Circuit Court Judge reviewable on - Discretion of the Court - Merits of the applicant - Civil Bill Courts (Ir.) Act, 1851 (14 & 15 Vict. c. 57), sects. 49, 55, 56, 57, 133 -Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of1922), Sch. I, Art. 64 - Courts of Justice Act, 1924 (No. 10 of 1924),sects. 17, 22, 51.

Certiorari.

The prosecutor, Patrick Hunt, applied, ex parte, for a conditional order of certiorari, directed to the Circuit Court Judge of the Midland Circuit, to bring up, for the purpose of being quashed, all and singular the decree of the said Circuit Court Judge, dated the 8th day of November, 1929, and made at Castlerea on the hearing of a Civil Bill or Complaint wherein the National Bank, Limited, were the plaintiffs and the said Patrick Hunt, as personal representative of Patrick Hunt, late of Castleplunkett, deceased, was defendant.

The facts have been summarised in the headnote and are fully stated in the judgment of the Chief Justice.

The prosecutor appealed ex parte to the Supreme Court (1).Upon that appeal, the Supreme Court ordered that the prosecutor should be at liberty to serve such notice as he might be advised of an application to be made to the Supreme Court for a conditional order of certiorari, such notice to contain the grounds sought to be relied on.

Pursuant to the said order, the prosecutor served notice of motion for a conditional order of certiorari directed to the Circuit Court Judge of the Midland Circuit to bring up for the purpose of being quashed the decree of the said Circuit Court Judge made in the action. The grounds of the application, set out in the notice of motion, were (a) that the decree was made without and in excess of jurisdiction; (b) that there was error apparent on the face of the decree; (c) that the decree amounted to an abuse of jurisdiction by misstating the order of the Judge as pronounced in open Court and purporting to be a determination of the matter which was at no time an issue in the said action, viz.: the personal liability of the said Patrick Hunt; (d) that the essentials of justice had been disregarded by reason of the decree (as distinct from the oral judgment or order pronounced in Court) being made without the knowledge of the said Patrick Hunt and without any opportunity being afforded to him of being heard by the Court in regard to the substitution of his personal liability for a liability against the property of Patrick Hunt, deceased; and (e) that the decree was bad upon its face for contradiction and failing to show jurisdiction.

The prosecutor had been sued in the Circuit Court as personal representative of P. H., deceased, on foot of a promissory note made by the said P. H. Evidence was given of acts, of the prosecutor making him an executor de son tort; and the only defence raised was one of estoppel based on an existing unsatisfied judgment on the same promissory note against another alleged executor de son tort. A decree was made by the Circuit Court Judge for the amount clammed (£65 5s. 3d.). The decree recited that the prosecutor was sued as personal representative of P. H., deceased, but directed execution against the goods of the prosecutor. The prosecutor did not appeal from the decree and alleged that he was not aware of the form of the decree until execution was levied under it over two years later. The prosecutor also alleged that the judgment of the Circuit Court Judge delivered orally in Court had expressly limited execution to the goods of the deceased, and that he (the prosecutor) had believed that that was the form of the decree. It also appeared that, shortly after the decree, the prosecutor offered to undertake personal responsibility and to pay the amount in instalments; and, accordingly, no action had been taken on foot of the decree for over two years.

The prosecutor applied for an order of certiorari to quash the-decree of the Circuit Court Judge, on the grounds that the decree was made without jurisdiction; that there was error apparent on its face; that it amounted to an abuse of jurisdiction by misstating the oral judgment; and that the essentials of justice had been disregarded.

Held by the Supreme Court (affirming O'Byrne J.) that an order ofcertiorari should be refused:

By FitzGibbon and Murnaghan JJ. (Kennedy C.J. dissenting), that the Circuit Court Judge had jurisdiction to make a decree against an executor de son tort to be executed de bonis propriis, and the decree against the prosecutor was made within jurisdiction.

By Kennedy C.J., that an order of certiorari was discretionary and the prosecutor was without merits in applying for the order.

Per FitzGibbon and Murnaghan JJ.:—The provisions of sects. 22 and 51 of the Courts of Justice Act, 1924, as to the exercise of jurisdiction, refer to jurisdiction "so far as regards pleading, practice and procedure," that is, the modus jus dicendi, and the method of exercising jurisdiction in the Civil Bill Court is applied by sect. 51 to the jurisdiction vested in, and transferred to, the Circuit Court by that Act.

Jurisdiction of the High Court to review on certiorari a decree of the Circuit Court considered.

O'Byrne J. :—

This is an application for a conditional order of certiorarito quash an order of the Circuit Court Judge for the Midland Circuit, made on 8th November, 1929. It will be noted that a period of nearly three years has been allowed to elapse before this application was made. Apart from this, there is a recognised remedy for persons aggrieved by an order of the Circuit Court. It is an appeal in accordance with the provisions of the Courts of Justice Act, and it seems to me that this would have been the proper procedure. Nevertheless, if I considered that the order impeached here had been made without jurisdiction I would be prepared to grant the conditional order sought, but there is nothing before me to satisfy me that the Circuit Court Judge did make the order without jurisdiction. The defendant was sued for the sum of £65 5s. 3d., a sum well within the jurisdiction of the Circuit Court, and he was sued as personal representative. A decree for that amount was given. It is alleged by counsel for the defendant that, inasmuch as he was sued in a representative capacity, there was no jurisdiction to make an order against him in his personal capacity. I am not satisfied as to that. There is no suggestion that the defendant pleaded plene administravit, or that he showed, or attempted to show, the extent of the assets he had received, or the manner in which he disposed of such assets.

In these circumstances, I am of opinion that it was competent for the Circuit Judge to find that the defendant had received, and had not accounted for, goods of the deceased to a sufficient extent to satisfy the plaintiffs' demand, and in the circumstances I am not satisfied that the order was made without jurisdiction.

Accordingly, I am of opinion that this application should be refused.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal by Patrick Hunt (described as "prosecutor")from an order of the High Court, made by Mr. Justice O'Byrne on the 12th of May, 1932, refusing the application ex parte of the appellant for a conditional order of certiorari directed to the Circuit Court Judge of the Midland Circuit to return t,o the High Court for the purpose of being quashed a decree of the Circuit Judge of the Midland Circuit, made at Castlerea and dated the 8th of November, 1929, on the hearing of a Civil Bill or Complaint wherein the National Bank, Limited, is the plaintiff and the said Patrick Hunt, personal representative of Patrick Hunt late of Castleplunkett, deceased, is defendant.

The Civil Bill by which the proceedings in the Circuit Court were commenced on the 5th of October, 1929, was indorsed as follows:—

"The defendant is hereby required personally to appear at the Circuit Court to be held at Castlerea in the said County, on the 8th day of November, 1929, to answer the plaintiffs' Bill for £65 5s. 3d., of which sum £50 is due for principal and £15 5s. 3d. is due for interest, on foot of a joint and several promissory note, dated 17th November, 1923, and payable six months after date to the plaintiffs or order and signed by Patrick Hunt, deceased, and James Casserley of Emlagh and John Hussey of Emlagh, which said note was duly presented for payment and dishonoured.

And for money due on a stated and settled account. Defendant is sued as personal representative of said Patrick Hunt, deceased, and is required to attend in Court on hearing of this action for examination on behalf of plaintiffs and to produce all documents, papers and accounts in anywise relating to the estate of said Patrick Hunt, deceased."

In the title of the Civil Bill the appellant was described as "Patrick Hunt of Milltown, Castleplunkett, in the said County and Division, personal representative of Patrick Hunt, late of Milltown aforesaid, deceased."

The action came on for trial on the 8th of November, 1929, before the late Judge Wakely. The appellant appeared and was heard by his solicitor. There was no dispute as to the promissory note mentioned in the Civil Bill having been made by the late Patrick Hunt, who was the appellant's father, nor as to the amount claimed on foot of the promissory note being due to the plaintiff Bank, nor as to the appellant having by...