Guertin v. Gosselin

Guertin v. Gosselin

Under article 761 C.C.P. a person whose claim is mentioned in the mortgage certificate and who is thereby interested in distribution has standing to appeal a distribution judgment; because the respondent did not expressly deny in pleadings the appellant's status the pleading operated as an admission under art.144 C.C.P.; and the alleged nullity of the transfer could not be finally adjudicated in incidental proceedings without making all interested parties (including the original company or its representatives) parties to the contest. Therefore the appeal was allowed and remitted for hearing on the merits.

Citation
(1897) 27 SCR 514
Parties
Appellant (cessionary of Hypothecary Creditor): Calixte Guertin; Respondent (collocated Creditor): François Gosselin
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 June 1897
Procedural Posture
Appeal Under Article 761 Code of Civil Procedure (distribution/collocation) / On Appeal to the Supreme Court of Canada; Remitted to Court of Queen's Bench (appellate Side) for Hearing on the Merits
Outcome
Appeal allowed with costs; case remitted to the Court of Queen's Bench (Appellate Side) for hearing on the merits
Legal Topics
Collocation and Distribution, Hypothecary Claims, Assignment/transfer, Signification/registration, Prête Nom (nominal Transferee), Incidental Proceedings, Nullity of Deed
Source Language
English
Civil Procedure Property Law Mortgage/hypothecary Law Appeal Law Collocation and Distribution Hypothecary Claims Assignment/transfer Signification/registration +3 more

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Parties

Calixte Guertin

Appellant (cessionary of Hypothecary Creditor)

François Gosselin

Respondent (collocated Creditor)

Procedural Posture

Appeal Under Article 761 Code of Civil Procedure (distribution/collocation) / On Appeal to the Supreme Court of Canada; Remitted to Court of Queen's Bench (appellate Side) for Hearing on the Merits

Legal Issues

  1. 1 Whether a transferee of a hypothecary claim whose transfer has not been signified to the debtor may appeal a judgment of distribution under art.761 C.C.P.
  2. 2 Whether pleadings operate as admissions under art.144 C.C.P. in incidental proceedings on appeal
  3. 3 Whether the alleged nullity of an assignment can be raised in incidental proceedings without joining all interested parties

Ratio Decidendi

Under article 761 C.C.P. a person whose claim is mentioned in the mortgage certificate and who is thereby interested in distribution has standing to appeal a distribution judgment; because the respondent did not expressly deny in pleadings the appellant's status the pleading operated as an admission under art.144 C.C.P.; and the alleged nullity of the transfer could not be finally adjudicated in incidental proceedings without making all interested parties (including the original company or its representatives) parties to the contest. Therefore the appeal was allowed and remitted for hearing on the merits.

Court Disposition

Appeal allowed with costs; case remitted to the Court of Queen's Bench (Appellate Side) for hearing on the merits

Orders

  • Respondent's petition of 25 September 1894 dismissed
  • Record remitted to the Court of Queen's Bench (Banc de la Reine) sitting in appeal for proceeding on the merits of the appeal