Dorothy Elizabeth Barton duPont brought an action against Alfred Victor duPont for separate maintenance. The Court of Chancery, 79 A.2d 680, entered an order denying a motion to dismiss the complaint for lack of jurisdiction over the subject matter and the defendant appealed. Dorothy Elizabeth Barton duPont moved to dismiss the appeal on ground that the order denying the motion to dismiss the complaint was not appealable. The Supreme Court, Wolcott, J., held that the denial of the motion to dismiss complaint was an interlocutory decree and appealable and the denial determined the plaintiff's right to institute her cause in the Court of Chancery.
Motion to dismiss appeal denied.
Arthur G. Logan and Samuel R. Russell, of Logan, Marvel & Boggs of Wilmington, for appellant.
James R. Morford, of Morford, Bennethum, Marvel & Cooch of Wilmington, for appellee.
Before WOLCOTT and TUNNELL, Justices, and TERRY, Judge.
[32 Del.Ch. 406] This is an appeal in an action instituted in the Court of Chancery by a wife seeking separate maintenance. The husband moved to dismiss the complaint for the reason, inter alia, that the Court of Chancery lacked jurisdiction over the subject matter. The court below denied the motion to dismiss.
This appeal is taken from the denial of the motion to dismiss. The appellee moved to dismiss the appeal on the ground that the order denying the motion to dismiss the complaint was a decretal order and, as such, not appealable under the constitutional provision allowing appeals from interlocutory decrees of the Court of Chancery.
This court's jurisdiction to hear appeals from Chancery is conferred by Section 11, Article IV of the Constitution of 1897, as amended, as follows:
‘ Section 11. The Supreme Court shall have jurisdiction as follows:
‘ (4) To receive appeals from the Court of Chancery, and to determine finally all matters of appeal in the interlocutory or final decrees and other proceedings in chancery.'
The present constitutional provision is similar to the provisions providing for appeals from Chancery found in the Constitutions of 1831 and 1792. It was held in Electrical Research Products, Inc., v. Vitaphone Corporation, 20 Del.Ch. 417, 171 A. 738, that the provision of the Constitution of 1897 is in substance the same as the provisions found in the Constitutions of 1831 and 1792. In Tatem v. Gilpin, 1 Del.Ch. 13, it was held that the provision of the Constitution of 1792 respecting appeals from Chancery secured and did not enlarge that right of appeal. The Vitaphone case approved and followed the rule laid down in the Tatem case. These holdings mean that the right of appeal from Chancery in Delaware exists in the same manner and to the same extent to which the right of appeal to the House of Lords from the High Court of Chancery existed in Great Britain prior to the separation of the colonies.
[32 Del.Ch. 407] The appeal now pending is from an order denying a motion to dismiss the complaint for lack of jurisdiction. Under the former practice of the Court of Chancery, such an objection would have been raised by demurrer. Under the present Chancery Rules, a motion to dismiss the complaint is the equivalent of the old practice of demurring to the bill. We have before us for determination, therefore, the narrow question of whether or not an appeal was formerly allowed from the overruling of a demurrer. If such appeals were allowed
in Great Britain prior to the separation, then such appeals will be ...