JOHN MCFADYEN v. ROCHELLE MCGHEE [2014] ScotSC 44 (30 April 2014)

JOHN MCFADYEN v. ROCHELLE MCGHEE [2014] ScotSC 44 (30 April 2014)

The sheriff was entitled to fix a hearing on the competency of proceeding with the action as framed, given the existence of a will which materially affected the pursuer's title to recover possession. The sheriff's interlocutor was proper and within her powers. The appeal was incompetent as it was not from a final judgment.

Citation
[2014] ScotSC 44
Parties
Pursuer and Appellant: John McFadyen; Defender and Respondent: Rochelle McGhee
Jurisdiction
Scotland
Judgment Date
30 April 2014
Procedural Posture
Summary Cause Appeal / Appeal Against Interlocutor Refusing Decree by Default and Fixing Hearing on Competency
Outcome
Appeal refused as incompetent; interlocutor of 25 March 2014 adhered to; cause remitted to sheriff to fix hearing on competency; pursuer found personally liable in expenses of appeal.
Legal Topics
Executor Dative, Competency of Action, Will and Testament, Title to Sue, Summary Cause Procedure
Succession Law Civil Procedure Executor Dative Competency of Action Will and Testament Title to Sue Summary Cause Procedure

Case Brief

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Parties

John McFadyen

Pursuer and Appellant

Rochelle McGhee

Defender and Respondent

Procedural Posture

Summary Cause Appeal / Appeal Against Interlocutor Refusing Decree by Default and Fixing Hearing on Competency

Legal Issues

  1. 1 Whether the sheriff erred in law in fixing a hearing on the competency of proceeding with the action as framed in light of the existence of a will
  2. 2 Whether the sheriff erred in law in questioning the competency of the pursuer's appointment as executor dative after confirmation was granted

Ratio Decidendi

The sheriff was entitled to fix a hearing on the competency of proceeding with the action as framed, given the existence of a will which materially affected the pursuer's title to recover possession. The sheriff's interlocutor was proper and within her powers. The appeal was incompetent as it was not from a final judgment.

Court Disposition

Appeal refused as incompetent; interlocutor of 25 March 2014 adhered to; cause remitted to sheriff to fix hearing on competency; pursuer found personally liable in expenses of appeal.

Orders

  • Appeal refused
  • Sheriff's interlocutor of 25 March 2014 adhered to