Turcotte v. Dansereau

Turcotte v. Dansereau

Because the defendant was not duly served and thus never legally in default, the year-and-a-day limitation does not apply and the ex parte judgment founded on a false bailiff's return is null and must be set aside; joining a rescissory plea with a plea to the merits does not alone mandate dismissal of the opposition.

Citation
(1897) 27 SCR 583
Parties
Appellant (defendant and Opposant): Arthur Turcotte; Respondent (plaintiff): Justine Delphine Dansereau
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 June 1897
Procedural Posture
Civil Action (promissory Notes) / Appeal to Supreme Court of Canada From Court of Queen's Bench (appeal Side) on Opposition to Ex Parte Default Judgment
Outcome
Appeal allowed with costs; judgments below reversed.
Legal Topics
Service of Process, Default Judgment, Opposition to Judgment (rescissoire/rescindant), Nullity of Judgment, False Bailiff's Return
Source Language
English
Civil Procedure Contract Law Service of Process Default Judgment Opposition to Judgment (rescissoire/rescindant) Nullity of Judgment False Bailiff's Return

Case Brief

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Parties

Arthur Turcotte

Appellant (defendant and Opposant)

Justine Delphine Dansereau

Respondent (plaintiff)

Procedural Posture

Civil Action (promissory Notes) / Appeal to Supreme Court of Canada From Court of Queen's Bench (appeal Side) on Opposition to Ex Parte Default Judgment

Legal Issues

  1. 1 Whether an ex parte default judgment can stand where the defendant was not duly served
  2. 2 Whether articles 483 et seq. (year-and-a-day rule) apply where service was invalid and defendant never in default
  3. 3 Whether joining a rescissory plea (rescissoire) with a plea to the merits (rescindant) mandates dismissal of the opposition

Ratio Decidendi

Because the defendant was not duly served and thus never legally in default, the year-and-a-day limitation does not apply and the ex parte judgment founded on a false bailiff's return is null and must be set aside; joining a rescissory plea with a plea to the merits does not alone mandate dismissal of the opposition.

Court Disposition

Appeal allowed with costs; judgments below reversed.

Orders

  • Appeal allowed with costs.
  • Judgment of the Court of Queen's Bench and Superior Court dismissing the opposition reversed.