O'Dell v. Gregory

JUSTICE.-This action was instituted the Superior Court by the present appellant against Teie.his wife, the respondent, for siparation de corps. The cause was heard by the Honourable Chief Justice of the Superior Court, Sir Louis Casault, who rendered judgment granting the conclusions taken by the appellant. From this judgment the respondent took an appeal to the Court of Queen's Bench, which court allowed the appeal, reversed the judgment of the Superior Court, and dismissed the action. From that judgment the present appeal has been taken. This the respondent has moved to quash for want of jurisdiction.

Appeals to this court from the province of Quebec are regulated by section 29 of the Supreme Court Act. Neither in this section, nor in any other part of the Act, is there any specific reference to actions of this class. The first paragraph of section 29 prohibits appeals when the matter in controversy does not amount to $2,000.

Here the matter in controversy is not in the nature of a pecuniary demand.

It is true, that the respondent's claim to certain furniture specified in an inventory attached to the marriage contract of the parties (under which they were married with a stipulation that they should be separate as to property) might incidentally be affected by the result of the action if that should be ultimately decided against the respondent. It is also true, that her contingent right to an annuity provided by the marriage contract as a provision for the respondent during widowhood in case she should survive her husband, would also be forfeited by a judgment adverse to her. The jurisdiction cannot, however, be founded on the claim relating to the furniture, for the reason that it does not appear to be of the value of $2,000.

Subsection (b) of section 29 is as follows:

If an appeal is admissible in the present case the jurisdiction can only be referred to something contained in this sub-clause. The first part of the subsection relates to appeals in the case of claims by the Crown. It is out of the question to-say that this appeal involves any title to land, or to any annual rent. There only remains the words " and other matters or things where the rights in the future might be bound." cannot hold that this confers jurisdiction.

The other matters or things referred to must, on the ordinary rule of construction noscitur a sociis, be construed to mean matters and things ejusdem generis with those specifically mentioned.

Then these are " title to lands and tenements and annual rents."

We must therefore interpret the words " other matters and things " as meaning rights of property analogous to title to lands and annual rents, and not personal rights however important.

Nothing2of this kind is however involved here. I take the word "title" to mean a vested right title, something to which the right is already acquired, though the enjoyment may beipostponed.

Then there is no vested right to the annuity during widowhood in case the respondent should survive her husband, that is an eventual right which might or might not come to be acquired by the respondent, according to the happening or not happening of the contingency. I conclude therefore that there are no matters or things involved in the action ejusdem generis with those particularly enumerated.

Had there been some actual right or title to lands rents, or other similar matters or things, incidentally involved in the action, I should think it very doubtful if even that ought to have been sufficient to support the jurisdiction.

To hold that there was jurisdiction for that reason in such a case as the present would be making an appeal, in a most important action in which the legislature had not thought fit to confer jurisdiction by a direct enactment, depend on subordinate incidents, in other words, invert the usual order which requires that the accessory should follow the principal. It is sufficient, however, for the present purpose to say that the appeal does not come within any of the provisions of section 29, inasmuch as the action does not involve an amount equal to $2,000, nor does it relate to any matters or things in the nature of vested property rights, which alone and not personal rights are intended by section 29 subsection (b) to be made the test of the right to appeal.

The appeal is quashed with costs.

Appeal quashed with costs.