Larue v. Larue, (1976) 2 A.R. 446 (TD)

• Judge: Shannon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 09, 1976
• Citations: (1976), 2 A.R. 446 (TD)

Larue v. Larue (1976), 2 A.R. 446 (TD)

MLB headnote and full text

Larue v. Larue

Indexed As: Larue v. Larue

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Shannon, J.

December 9, 1976.

Summary:

This case arose out of a claim by a woman against her ex-husband for conversion. The woman took judgment in default of a defence by the ex-husband. The ex-husband brought an application to set aside the default judgment. The Alberta Supreme Court, Trial Division, allowed the application and held that the claim was one of damages for conversion and not for debt or a liquidated demand within Supreme Court Rule 148(1). The Trial Division held that the woman was not entitled to take default judgment on such a claim - see paragraphs 1 to 10.

Practice - Topic 3229

Default proceedings - Proceedings in default of defence - Default judgment - Requirement of debt or liquidated demand - Alberta Supreme Court Rule 148(1) - A woman brought an action against her ex-husband claiming $5,354.50 for the conversion of her automobile and funds for the purchase of a vehicle by the husband during the marriage - The wife took judgment in default of a defence by her ex- husband - The Alberta Supreme Court, Trial Division, allowed the ex-husband's application to set aside the default judgment - The Trial Division held that the wife's claim was one for damages for conversion and not for debt or a liquidated demand within Rule 148(1) - The Trial Division held that the wife was not entitled to take default judgment on such a claim - See paragraphs 1 to 10.

Practice - Topic 6197

Judgments - Default judgments - Setting aside default judgments - Grounds - Excessive amount of judgment - The plaintiff took default judgment in excess of the amount claimed - The Alberta Supreme Court, Trial Division, held that the excessive judgment should be set aside or at least amended - See paragraph 11.

Cases Noticed:

North Pacific Mortgage Company v. Toner and Toner, [1931] 3 W.W.R. 395 (Alta. S.C.), appld. [para. 9].

Rizzie v. J.H. Lilley and Associates, [1976] 2 W.W.R. 97, appld. [para. 10].

Hoover and Robertson v. Burrows, [1945] 3 W.W.R. 683, appld. [para. 11].

Archer v. Sayers, [1974] 2 W.W.R. 277, dist. [para. 12].

Statutes Noticed:

Supreme Court Rules (Alta.), rule 142 [para. 6]; rule 148(1) [para. 7].

Counsel:

S.M. Hirji, for the plaintiff;

G.W. Kay, for the defendant.

This case was heard before SHANNON, J., of the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On December 9, 1976, SHANNON, J., delivered the following judgment: