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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stevenson v. Stevenson [1894] ScotLR 31_500 (7 March 1894) URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0500.html Cite as: [1894] ScotLR 31_500, [1894] SLR 31_500 |
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Page: 500↓
(Sequel to case reported supra, p. 350).
A wife having presented an appeal to the House of Lords against an interlocutor ordering her to deliver up the children of the marriage whom she had surreptitiously removed from their father's house, the husband presented a petition craving the Court “to allow execution to proceed notwithstanding the appeal,” and also “to grant warrant to messengers-at-arms to take into their custody the persons of the said children.”
Held that execution should be allowed to proceed, but that the latter part of the prayer of the petition was inappropriate, the wife not being in contempt of Court.
Colonel James Stevenson of Braidwood, Lanarkshire, presented a petition to the First Division of the Court of Session on March 3, 1894, in which he stated that his wife had presented a petition of appeal to the House of Lords against the judgment pronounced by their Lordships on January 30, 1894, ( supra, p. 350), and prayed the Court “to allow execution to proceed upon the said judgment notwithstanding the appeal, to the effect of enabling the petitioner to obtain the custody of his children, the said Samuel Delano Stevenson, Adela Florence Victoria Stevenson, and Laura Janetta Stevenson, in terms thereof; and also to grant warrant to messengers-at-arms and other officers of the law to take into their custody the persons of the said children, wherever they may be found, and deliver them into the custody of the petitioner, or any person or persons he may appoint to have and keep their custody, and authorise and require all judges-ordinary in Scotland and their procurators-fiscal to grant their aid in the execution of this warrant, and recommend to all magistrates in England and elsewhere to give their aid and concurrence in carrying this warrant into effect: Or to do otherwise as to your Lordships shall seem proper.”
Argued for petitioner—In the case of Symington, June 11, 1874, 1 R. 1006, a prayer “to allow execution to proceed on the foresaid decrees notwithstanding the appeal (to the House of Lords), to the effect of enabling the petitioner to obtain the custody of the children of the marriage” was granted. That case did not support the latter part of the prayer here, which, however, was in terms similar to those used in the cases of the Earl of Buchan v. Lady Cardross, May 27, 1842, 4 D. 1268; Leys v. Leys, July 20, 1886, 13 R. 1223; Hutchison v. Hutchison, December 13, 1890, 18 R. 237.
Argued for respondent—(1) The status quo should be maintained pending the appeal— Gray v. Low, March 12, 1859, 21 D. 723; Kirkcaldy District Committee of the County Council of Fife v. Howard, July 20, 1893, 20 R. 1123. There was no suggestion that the mother was about to remove the children out of the country, or that there would be undue delay in prosecuting the appeal. (2) The health of the children, according to a letter from a qualified medical man, made it very undesirable that they should leave St Leonards-on-Sea, where they were living, and travel north in winter. (3) The latter part of the prayer was quite inappropriate to the present circumstances and unwarranted. Such a prayer was only granted where the respondent was defying the orders of the Court.
Page: 501↓
This being so, it vitiated the whole petition. At advising—
We are now asked by the father to put the children, pending the appeal, into his house, where they would have been but for their mother's surreptitious removal of them.
I am in favour of granting the prayer of the petition. I should certainly not have acceded to the request if I had had reason to believe the interests of the children would suffer thereby, but all we are told, and that somewhat vaguely, is that they are in delicate health, and are not in a fit state to come to Scotland for what is called “the winter.” Colonel Stevenson will no doubt have due regard to his children's health, and will not take them to a climate injurious to it. I do not think we need do more than state what is his manifest duty, and which I have no doubt he will perform.
I have heard no adequate reason against granting this petition, and I think we best respect the status quo by restoring the children to the house from which they were surreptitiously removed.
As to the form of the petition, I think the petitioner has adopted a wrong style, and that the latter part of the prayer is only appropriate where search has to be made. This is evident from the reference to judges-ordinary in Scotland and their procurators-fiscal, and to magistrates in England, which indicates that extraordinary measures have to be resorted to. I think the proper course for us to adopt here is simply to follow out our previous order, which it is the defender's duty to obtemper, by granting the first part of the petition, and allowing execution to proceed pending appeal.
I have heard nothing satisfying me that it would be prejudicial to the interests of the children to grant the prayer of the petition. I think ante omnia they should be restored to their father's house. It is suggested that their health will suffer by bringing them to Scotland, but doubtless the petitioner will take proper care of them if he gets this order, and it does not necessarily follow that he will bring them down here.
The rest of the petition is not appropriate. The lady should have an opportunity of obtempering the order of the Court. If she should unfortunately refuse to obey our order, she would then be in contempt, and it would be for the petitioner to take any other proceedings he might deem necessary. The remaining part of the petition might in such circumstances be more or less appropriate, but at present we should, I think, only grant the first part, and I hope she will obey the order.
I am of opinion we should grant the first part of this petition and refuse the second part.
The Court granted the prayer of the petition so far as it craved execution pending appeal, and quoad ultra refused the prayer of the petition as incompetent.
Counsel for the Petitioner— Maconochie. Agents— Maconochie & Hare, W.S.
Counsel for the Respondent— Ure— M'Lennan. Agent— J. Murray Lawson, S.S.C.
