Armour v Bate
| Jurisdiction | England & Wales |
| Year | 1891 |
| Date | 1891 |
| Court | Court of Appeal |
Practice - Trial - Default of appearance of Plaintiff - Form of Entry of Judgment - Order XXXVI. r. 32.
If, when a trial called on, the defendant appears and the plaintiff does not appear, and there is no counter-claim, the defendant is not entitled under Order XXXVI., r. 32, to have judgment entered for him, but judgment should be entered dismissing the action for default of appearance of the plaintiff.
APPEAL from the judgment of Wills, J., at the trial without a jury.
The action was brought to recover a sum of 300l. deposited by the plaintiff with the defendant, who was his employer. The defendant's pleadings did not deny the deposit, but averred that it had been made in lieu of a fidelity bond, and as an indemnity to the defendant, and there were alternative averments of dishonesty or negligence by the plaintiff entitling the defendant to indemnify himself, out of the sum so deposited, for loss arising from the acts of the plaintiff. There was also a counter-claim. The plaintiff did not appear, and counsel for the defendant abandoned the counter-claim, and asked for judgment. Judgment was accordingly entered for the defendant.
The plaintiff appealed.
J. Walton, in support of the appeal. By Order XXXVI., r. 32, “If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action.” This rule does not apply when the burden of proof is on the defendant; but, at any rate, the judgment entered for the defendant is wrong. The effect of it is to give judgment for the defendant on all the issues, and so to convict the plaintiff of the alleged fraud without any proof whatever. If a judgment dismissing the action had been entered the plaintiff might have applied to set aside the judgment under Order XXXVI., r. 33, but as the judgment entered was wrong his only course was to appeal against it.
Gully, Q.C., and C.A. Russell, contrà. Under Order XXXVI., r. 32, there is no question whether the onus of proof is on the defendant except that, under the latter part of the rule, “if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him.” In all other cases if the plaintiff does not appear at the trial to ask for the relief which he seeks by his pleadings, the defendant is entitled to judgment.
J. Walton, in...
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