Serling v. Levine

Serling v. Levine

Majority: Procedural irregularities in the trial court are matters for that court to manage and will not be disturbed on appeal absent demonstrable prejudice; the exception of minority is relative and may be waived where a defendant sued during minority attains majority, appears and participates in proceedings without insisting on a tutor; accordingly no prejudice was shown and the Superior Court judgments should stand.

Citation
(1912) 47 SCR 103
Parties
Plaintiff/appellant: Harry Serling; Defendant/respondent: William Levine
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 October 1912
Procedural Posture
Civil Action for Damages (malicious Prosecution) / Appeal to Supreme Court of Canada From Court of King’s Bench, Appeal Side, Province of Quebec
Outcome
Appeal allowed; judgment of Court of King’s Bench reversed; judgments of the Superior Court restored and plaintiff’s action maintained.
Legal Topics
Exception of Minority, Nullity of Process, Waiver and Ratification, Prejudice Requirement for Procedural Objections, Inscription for Judgment Ex Parte, Appointment of Tutor
Source Language
English
Civil Procedure Capacity of Minors Tort Law Malicious Prosecution Appellate Review Exception of Minority Nullity of Process Waiver and Ratification Prejudice Requirement for Procedural Objections +2 more

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Parties

Harry Serling

Plaintiff/appellant

William Levine

Defendant/respondent

Procedural Posture

Civil Action for Damages (malicious Prosecution) / Appeal to Supreme Court of Canada From Court of King’s Bench, Appeal Side, Province of Quebec

Legal Issues

  1. 1 Whether service of process on a minor without impleading a tutor renders the action a nullity ab initio
  2. 2 Whether the exception of minority is relative and can be waived by the defendant after attaining majority by appearing and participating in proceedings
  3. 3 Whether procedural irregularities in first instance warrant intervention by an appellate court absent prejudice

Ratio Decidendi

Majority: Procedural irregularities in the trial court are matters for that court to manage and will not be disturbed on appeal absent demonstrable prejudice; the exception of minority is relative and may be waived where a defendant sued during minority attains majority, appears and participates in proceedings without insisting on a tutor; accordingly no prejudice was shown and the Superior Court judgments should stand.

Court Disposition

Appeal allowed; judgment of Court of King’s Bench reversed; judgments of the Superior Court restored and plaintiff’s action maintained.

Orders

  • Appeal allowed with costs
  • Judgments of the Superior Court, District of Montreal, confirmed