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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v. Gavan [1880] ScotLR 17_583 (26 May 1880) URL: http://www.bailii.org/scot/cases/ScotCS/1880/17SLR0583.html Cite as: [1880] ScotLR 17_583, [1880] SLR 17_583 |
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Page: 583↓
[Sheriff of Lanarkshire
In an action in a Sheriff Court the Sheriff granted decree against the defender in terms of the conclusions of the petition in respect of no appearance by or for the defender at a diet appointed for hearing an appeal by the defender against an interlocutor allowing a proof. The Court, in respect that the default happened through a mistake of the defender's procurator as to the effect of his nonattendance at the debate, reponed him on payment of expenses since the date of the interlocutor allowing a proof.
In an action for delivery of certain articles raised in the Sheriff Court of Lanarkshire at the instance of Ann Gavan against Hugh King, the Sheriff-Principal ( Clark) appointed the 19th April 1880 for hearing parties' procurators on an appeal to him by the defender from an interlocutor of the Sheriff-Substitute ( Lees) allowing a proof. On the 19th April no appearance was made for the defender to support his appeal.
The Sheriff Court Act of 1876 (39 and 40 Vict. c. 70) by section 20 enacts as follows:—“Where in any defended action one of the parties fails to appear by himself or his agent at a diet of proof, diet of debate, or other diet of cause, it shall be in the power of the Sheriff to proceed in his absence, and, unless a sufficient reason appear to the contrary, he shall, whether a motion to that effect is made or not, pronounce decree as libelled or of absolvitor, as the case may require, with expenses; or if all parties fail to appear, he shall, unless a sufficient reason appear to the contrary, dismiss the action.”
The Sheriff pronounced this interlocutor—“ Glasgow, 19 th April 1880.—On the pursuer's craving, in respect of no appearance being made for the defender, although his agent was repeatedly sent for, Holds him as confessed: Recals the interlocutor appealed against, and decerns and ordains the defender to deliver as craved.”
The defender appealed to the Court of Session.
It was explained for him at the bar that the procurator whom he had employed had failed to attend the diet before the Sheriff in the belief that the effect of such failure would merely be the dismissal of the appeal against the order for proof, in which it was no longer desired to insist. The Sheriff, however, had, instead of dismissing the appeal, decerned him to deliver the articles in dispute. The section might be binding on the Sheriff, but this Court would repone on cause shown.— Anderson v. Garson, 3R. 254; M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085.
The Court reponed the defender on payment of the expenses incurred since the interlocutor allowing a proof.
Counsel for Appellant— Brand. Agent— W. Officer, S.S.O.
Counsel for Respondent— Campbell Smith. Agent— John Gill, S.S.O.
