Murdoch v. Murdoch, (1972) 95 A.R. 118 (CA)

JudgeCairns, Kane and Clement, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateFebruary 01, 1972
Citations(1972), 95 A.R. 118 (CA)

Murdoch v. Murdoch (1972), 95 A.R. 118 (CA)

MLB headnote and full text

Irene F. Murdoch (appellant) v. James A. Murdoch (respondent)

(Appeal No. 8173)

Indexed As: Murdoch v. Murdoch

Alberta Supreme Court,

Appeal Division

Cairns, Kane and Clement, JJ.A.

February 1, 1972.

Summary:

The Alberta Supreme Court, Trial Division, in a judgment reported at paragraphs 9 to 24 below, granted a wife $200.00 per month alimony, but dismissed her equitable claim against lands registered solely in her husband's name. The wife appealed the judgment and accepted the alimony pending the hearing of the appeal.

The Alberta Supreme Court, Appeal Division, Kane, J.A., dissenting, dismissed the appeal. See paragraphs 1 to 8 below. The court stated that the judgment could not be divided as the adjudication in respect of alimony was inextricably related to and dependent upon the fact that there was to be no division of the property. The court held that the wife, having taken advantage of the judgment by accepting the alimony, was precluded from appealing the judgment.

Editor's Note: This case, previously unreported in this series of reports, is now being reported at the request of a subscriber. Please note that the Supreme Court of Canada, in a judgment reported [1975] 1 S.C.R. 423, found it unnecessary to consider the ground relied upon by the Appeal Division to dismiss the appeal.

Practice - Topic 8845

Appeals - Bar or loss of right of appeal - Acceptance of benefits of judgment at trial - A wife sought alimony and claimed an equitable interest in land registered solely in her husband's name - The trial judge awarded the wife $200.00 per month alimony and dismissed her claim against the land - The wife appealed the trial judgment - The wife had been accepting alimony as directed in the judgment - The Alberta Supreme Court, Appeal Division, stated that "in our view the judgment cannot be divided as the adjudication in respect of alimony was inextricably related to and dependent upon the fact that there was to be no division of the property. The appellant having taken advantage of the judgment cannot therefore appeal the same".

Cases Noticed:

Pigott v. Pigott, [1969] 2 O.R. 427, refd to. [para. 5].

Counsel:

E.R. Shymka, for the appellant;

L.R. Duncan, for the respondent.

This appeal was heard before Cairns, Kane and Clement, JJ.A., of the Alberta Supreme Court, Appeal Division.

On February 1, 1972, the judgment of the Alberta Supreme Court, Appeal Division was delivered and the following opinions were filed.

Cairns, J.A. (Clement, J.A., concurring) - See paragraphs 1 to 6;

Kane, J.A., dissenting - See paragraphs 7 and 8.

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