APPEAL COURT.

Temuka Leader, Issue 1109, 24 May 1883, Page 3

APPEAL COURT.

Rooney v. Union Insurance Company. (From the Press.)

At the sittings of the Appeal Court, Wellington, on Tuesday last, the case of Thomas Rooney (plaintiff) v the Union Fire and Marine Insurance Company of Now Zealand and others (defendants) was taken. Mr Joynt appeared for the plaintiff, and Mr Harper for the defendants. A verdict had been found for the plaintiff for £SOO on the 15th 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 ride nisi for a new trial, the plaintiff moved to set it aside, on 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made in this action on 22nd December last extending the time for the defendants to move for a new trial, should not be rescinded, and all subsequent proceedings set aside, on the grounds that no notice was given to the plaintiff »f the defendant’s intention to apply for tbs order, for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 Johnson, before whom tne 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 judgement, said—“ lam bound to s-y I 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 be, and no doubt it is true, that the defendant moved only for a rule nisi , and that an order extending the time to move was granted instead, but he accepted the order, and I think that order, seeing that the operation of the rub 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 pratice 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 lime, is this, that the execution is stayed by extension and not by postponement, The next question is whether, this order having been granted, and acted upon sb far'that it was served upon the plaintiff, wo can treat fie rub nod as standing 1 upon any other basis than ot this order. True, the rub is drawn up without any reference to the order, but [, nevertheless, think that, as there is no suggestion that the rub nisi was gran'ed on any other ground, we should be justified in as»u ning 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 Gillies—l entirely concur with His Honor the Chief Jus'ice, It seems simply a technical question, and as the procedure under which it has occurred is now repealed, and it can’t effect the fu’ure procedure nor become a precedent, there is no necessity for me to give tiie reasons for my opinion at length,

Mr. Jusih c Williams— 1 agree with what has be n already raid by the other members of the Court,

Plaintiff’s rule allowed, with costs. Defendants’ rule discharged, with costs, except the costs of argument of the rule.