APPEAL COURT.

Ashburton Guardian, Volume IV, Issue 950, 23 May 1883, Page 2

APPEAL COURT.

In the Court of Appeal at Wellington yesterday, the case of Wilkin v. the Minister of Public Works was concluded before their Honors the Chief Justice, Mr Justice Williams and Mr Justice Gillies. The Court ordered that the award which formed the subject; of the motion be amended by striking out the amount of costs. It was further ordered that the costs of the motion be taxed according to the usual scale and paid by the respondent to the claimant Wilkin. The case of Thomas Rooney (plaintiff) v. the Union Fire and Marine Insurance Company of New Zealand and others (defendants) was then taken. Mr Joynt appeared for the plaintiff, and Mr Harper for the defendants. A verdict had been found for the plaintiff for LSOO on the 16th Dec. last. The defendants then set down a motion for a rule nisi for a new trial within fourteen days, but instead of obtaining such a rule took out a rule extending the time. The defendants having subsequently more than fourteen days after the trial obtained a rule nisi for a new trial, the plaintiff moved to set it aside, oh the ground that it had not been obtained within fourteen days, and that the order extending the time had been obtained ex parte. The rule nisi was as follows:—Ordered that the defendants show cause why an order made in this action on 22nd December last, extending the time for the defendants to move for a new trial, should not be rescinded, and all subsequent proceedings set aside, on the grounds that no notice was given to the plaintiff of the defendants’ intention to apply for the order, for the application was made - and the order granted ex parte, and that the granting of the order was given to the prejudice of the plaintiff’s rights. It seemed to his Honor Judge Johnston, before whom the matter came in banco, that the question raised by the rule was of sufficient importance to warrant its removal to the Court of Appeal, and this was accordingly done.

Mr Harper, for the defendants, now showed cause.

His Honor the Chief Justice, in delivering judgment, said —“ lam bound to say 1 regret the conclusion at which I am forced to arrive, and that is, that the order extending the time to move was an order which could not be made ex parte. It may he, and no doubt it is, true, that the defendant moved only for a rule nisi, and that an order extending the time to move w is granted instead, but he accepted the order, and I think that order seeing that the operation of the rule of 1877 was to suspend execution was an order which could only be made on notice. That was not done, and the Court ought not to have made the order. Nor should the defendant have accepted it. It has been a well recognised practice in this district, and I believe in others, that the distinction between formally making a motion for a new trial and getting it postponed, or for moving to extend time, is this, ihat the execution is stayed by extension and not by postponement. The next question is whether this order, having been granted and acted upon, and having been acted upon so far that it was sewed upon the plaintiff, we can treat the rule nisi as standing upon any other basis than of this order. True, the rule is drawn up without any reference to the order, but I, nevertheless, think that, as there is no suggestion that the rule nisi was gsantfid on any other ground, we should be justified iu assuming that it was made under this order extending the time to move. That being so, I say, and say it with regret, that the rule nisi was improperly obtained, and must be set aside.

Mr Justice Gillios —I entirely concur ,with His Honor the Chief Justice. It Seems simply a technical question, and as the procedure under which it has occurred is now repealed, and it can’t affect the future procedure nor become precedent, there is no necessity for me to give the reasons for my opinions at length. Mr Justice Williams—l agree . with what has been already said by the other members of the Court.

Plaintiff’s rule allowed, with costs. J>efendant’s rule discharged, with costs, px? cept the costs of argument of the rule.