Macdonald, Fraser, & Co., Ltd v. Dewar [1903] ScotLR 41_123 (05 December 1903)

It is incompetent to pronounce decree by default for non-appearance at a diet of proof that was not fixed by a written and signed interlocutor appearing on the record.

Citation: [1903] ScotLR 41_123
Parties: Pursuer/respondent: Macdonald, Fraser, & Company, Limited; Defender/appellant: Donald Dewar
Jurisdiction: Scotland
Judgment Date: 05 December 1903
Procedural Posture: Civil Appeal / Appeal From Sheriff Court Interlocutor
Outcome: appeal sustained; interlocutor recalled; cause remitted
Legal Topics: Decree by Default, Fixing of Diet of Proof, Sheriff Courts Act 1876, Non Appearance, Interlocutor Requirements

Civil Procedure Decree by Default Fixing of Diet of Proof Sheriff Courts Act 1876 Non Appearance Interlocutor Requirements

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Parties

Macdonald, Fraser, & Company, Limited

Pursuer/respondent

Donald Dewar

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff Court Interlocutor

Legal Issues

1 Whether a decree by default for non-appearance is competent when the diet of proof was not fixed by a written and signed interlocutor.

Ratio Decidendi

It is incompetent to pronounce decree by default for non-appearance at a diet of proof that was not fixed by a written and signed interlocutor appearing on the record.

Court Disposition

appeal sustained; interlocutor recalled; cause remitted

Orders

The appeal is sustained.
The interlocutor appealed against is recalled.