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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Arthur v. Bell [1866] ScotLR 2_88 (16 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0088.html Cite as: [1866] SLR 2_88, [1866] ScotLR 2_88 |
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Page: 88↓
Circumstances in which a reclaiming-note praying to be reponed refused. Observed that a party is not entitled to be reponed against a judgment pronounced in absence or by default simply as a matter of course.
Bell brought an action against Arthur, and decree passed in absence. Arthur suspended, and in the action of suspension the Lord Ordinary (Kinloch) pronounced the following interlocutor:—“The Lord Ordinary having called the cause repeatedly in the debate-roll, and no appearance being made for the suspender, on the respondent's motion, repels the reasons of suspension: Finds the charge orderly proceeded, and decerns: Finds the suspender liable in expenses, allows an account thereof to be lodged, and remits the same to the Auditor to tax and report.”
Arthur reclaimed, and sought to be reponed, offering to pay any expenses that might have been incurred by the other party in consequence of his failure to appear.
Rhind, for him, argued that the reclaimer should be reponed, in respect of the offer to pay expenses, which he at once made. There was no case where the Court had refused to repone upon a first reclaiming-note. Hamilton v. Christie, 19 D. 712; Mather v. Smith, 21 D. 24.
Mackenzie, for the respondent, was not called upon.
The Court unanimously refused the application. The Lord Justice-Clerk remarked that the point was one of considerable practical importance, and he was glad that the matter had been brought before the Court, because it gave them the opportunity of observing that a party was not entitled to be reponed simply as a matter of course. This was tantamount to a demand to be reponed upon a second reclaiming-note, because the relaimer had already been reponed in the action of suspension of the decree in absence, which he had allowed to pass against him.
Solicitors: Agent for Reclaimer—Party.
Agent for Respondent—Party.