Saskatoon Mortgage and Loan Company v Roton,

• Docket Number: Case No. 157
• Court: Court of Appeal (Saskatchewan)
• Date: 12 May 1942

Canada, Saskatchewan Court of Appeal.

Case No. 157

Saskatoon Mortgage & Loan Co., Ltd.

and

Roton.

War — Effects of Outbreak of — Procedural Capacity of Alien Enemies — Mortgagor resident in Enemy-Occupied Territory — Foreclosure Proceedings against — Substituted Service — Custodian of Enemy Property as Defendant.

The Facts.—This was an appeal by the plaintiff corporation from an order of Maclean, J., affirming the order of the Local Master setting aside an ex parte order made by him permitting substitutional service of a writ of summons for foreclosure of a mortgage on the defendant firm of solicitors as agents of the mortgagor defendant who was in Paris, France.

Held: that the appeal must be dismissed.

The Court said: “On the merits counsel for the plaintiff relies upon the case of Porter v. Freudenberg, Kreglinger v. Samuel & Rosenfeld, Re Merten's PatentsUNK (1915), 84 L.J.K.B. 1001, in which case an order for substitutional service was directed upon an enemy alien residing in Germany. In my view, however, this is an authority against the plaintiff. In that case Lord Reading, C.J., stated as follows (p. 1017): ‘In order that substituted service may be permitted, it must be clearly shewn that the plaintiff is in fact unable to effect personal service, and that the writ is likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted’. As I read the material filed, it is almost conclusive that no information will reach the defendant in respect of these proceedings, and such being the case I do not think that the order for substitutional service should have been granted. Further, I am not at all satisfied that merely...