Winters v Elizabeth James Models (Mfg.) Ltd

CourtSupreme Court
Judgment Date01 January 1955
Date01 January 1955

Supreme Court.

Winters v. Elizabeth James Models (Mfg.) Ltd.

Practice - Transfer of action from High Court to Circuit Court - Trial judge making order for transfer of action of his own motion - Jurisdiction - Validity of order - Courts of Justice Act, 1924 (No. 10 of 1924), s. 25 -Courts of Justice Act, 1936 (No. 48 of 1936), s. 11, sub-s. 2 (b).

Motion on Notice.

By originating summons dated the 20th May, 1952, and served on the 21st May, 1952, the plaintiff claimed the sum of £112, being interest on certain shares which, it was alleged, were allotted to him in the defendant Company. On the 30th May, 1952, an appearance was entered to the originating summons. In the course of correspondence the solicitor for the defendant Company requested the plaintiff to consent to the matter being remitted to the Circuit Court at Cork, as the Company carried on business in that city and the claim was within that Court's jurisdiction, and pressed that the matter be set down for hearing. As no step was taken by the plaintiff other than the issue and service of the summons the defendants, by notice of motion dated the 9th April, 1953, sought an order directing the plaintiff or his solicitor to have the proceedings set down before the Master of the High Court for determination or further proceeding. The motion came before Mr. Justice McLoughlin, who, on the 24th April, 1953, ordered that the action be transferred to the Circuit Court to be further prosecuted before the

Sect. 11, sub-s. 2, (b) of the Courts of Justice Act, 1936, provides that "an action for the recovery of a liquidated sum shall not be remitted or transferred under the said section unless the plaintiff consents thereto or the defendant either satisfies the High Court that he has a good defence to such action or some part thereof or discloses facts which, in the opinion of the High Court, are sufficient to entitle him to defend such action."

Judge assigned to the Cork Circuit. No application was made to the High Court Judge by either the plaintiff or the defendant Company to have the action transferred to the Circuit Court nor was this matter argued by counsel. Against this order the plaintiff appealed to the Supreme Court on the grounds 1, that the learned trial Judge had not jurisdiction to transfer this action of his own motion to the Circuit Court and that the order, dated the 24th April, 1953, was made without...

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