Winters v Elizabeth James Models (Mfg.) Ltd

CourtSupreme Court
Judgment Date01 January 1955
Date01 January 1955
Winters v. Elizabeth James Models (Mfg.) Ltd.

Supreme Court.

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).

On an application to the High Court on behalf of the defendants for an order directing the plaintiff to have proceedings, commenced by summary summons, for a liquidated sum, to which an appearance had been entered, set down before the Master of the High Court for determination, or further proceedings or such other order as to the Court seemed just the trial judge, of his own motion, made an order transferring the action to the Circuit Court, without any application for such transfer having been made to him by either party to the action and without giving them an opportunity of discussing the question of the transfer. On appeal by the plaintiff to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., O'Byrne, Lavery, Kingsmill Moore and O'Daly JJ.) that the provisions of s. 11, sub-s. 2 (b), of the Courts of Justice Act, 1936, were applicable in the circumstances; that the plaintiff did not consent to the matter being remitted; that the defendants did not satisfy the High Court that they had a good defence to the action or some part thereof or disclose facts sufficient to enable them to defend such action and that accordingly the order of the trial judge was made without jurisdiction.

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...

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