Fidelity-Phenix Fire Insurance Co. of New York v. McPherson

Fidelity-Phenix Fire Insurance Co. of New York v. McPherson

Because the appellant had not given security for the judgment debt and costs as required by s.76(d) of the Supreme Court Act, a judge of this Court could not stay execution of the money judgment; control of execution in that circumstance rests with the court appealed from. However, this Court can stay further proceedings in this Court pending presentation of a petition for leave to appeal to the Judicial Committee of the Privy Council upon an undertaking by the appellant to present such a petition.

Citation
[1925] SCR 104
Parties
Appellant/defendant: Fidelity-Phenix Fire Insurance Company of New York; Respondents/plaintiffs: Duncan McPherson and others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 December 1924
Procedural Posture
Civil Appeal to the Supreme Court of Canada From the Appellate Division of Alberta / Application for Stay of Proceedings Pending Projected Appeal to the Judicial Committee of the Privy Council After Dismissal of the Appeal
Outcome
Motion dismissed
Legal Topics
Stay of Proceedings, Security for Costs, Execution for Judgment, Leave to Appeal to Judicial Committee of the Privy Council, Jurisdiction
Source Language
English
Civil Procedure Appeal Enforcement of Judgments Stay of Proceedings Security for Costs Execution for Judgment Leave to Appeal to Judicial Committee of the Privy Council Jurisdiction

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Parties

Fidelity-Phenix Fire Insurance Company of New York

Appellant/defendant

Duncan McPherson and others

Respondents/plaintiffs

Procedural Posture

Civil Appeal to the Supreme Court of Canada From the Appellate Division of Alberta / Application for Stay of Proceedings Pending Projected Appeal to the Judicial Committee of the Privy Council After Dismissal of the Appeal

Legal Issues

  1. 1 Whether this Court or a judge of it can stay execution of a money judgment where security for the debt and costs below has not been given
  2. 2 Whether this Court can stay further proceedings in this Court pending a petition for leave to appeal to the Judicial Committee of the Privy Council

Ratio Decidendi

Because the appellant had not given security for the judgment debt and costs as required by s.76(d) of the Supreme Court Act, a judge of this Court could not stay execution of the money judgment; control of execution in that circumstance rests with the court appealed from. However, this Court can stay further proceedings in this Court pending presentation of a petition for leave to appeal to the Judicial Committee of the Privy Council upon an undertaking by the appellant to present such a petition.

Court Disposition

Motion dismissed

Orders

  • Motion for stay of proceedings dismissed.
  • The court indicated it could direct that further proceedings in this Court be stayed until the appellant had an opportunity to present a petition for leave to appeal to the Judicial Committee of the Privy Council, conditioned on the appellant undertaking to present the petition at the first sittings after January 1.