Judgment of the Court
THE CHIEF JUSTICE.-This is a motion to quash an appeal from a judgment of the Court of Queen's Bench affirming a judgment of the Superior Court, whereby in an action for separation de corps instituted by the present respondent against her husband, the present appellant, the latter court decreed separation.
The action of the respondent is founded on allegations of cruel and unlawful treatment and the conclusion taken is in the usual form for separation from bed and board which of course is the pr.ncipal relief sought, the other heads which include amongst several others a condemnation to pay $18,000 money of the respondent alleged to have come to the hands of the appellant, all being dependent upon and subordinate and incidental to the principal head, the separation from bed and board. The appeal therefore, if admitted, would necessarily involve a discussion as to the sufficiency of the evidence and the grounds for the adjudication on the question of separation.
The judgment as to the incidental matters would follow as of course the decision of the court upon the main question involved in the action which this court would therefore be compelled to deal with primarily, irrespective altogether of any matters in dispute as to the pecuniary or other consequential rights between the parties. In the case of O'Dell v. Gregory (1) this court has already determined that an action for separation is not within its competence, the statute to which the juris- Jusie, diction here must always be referred not having provided for an appeal in this class of cases:
If we were to hold that the mere addition to the conclusion of a claim for relief, in respect of a money demand consequent upon and incidental to a judgment for the plaintiff, could give this court jurisdiction, the want of jurisdiction which we must presume was withheld by the legislature for some good reason, would be rendered illusory and the rule formulated in O'Dell v. Gregory (1) would be evaded.
We are all of opinion that the motion to quash must be granted.
Appeal quashed with costs.