46 So. 657 | La. | 1907
On Motion to Dismiss.
The present appeal is from a judgment making absolute a rule taken by defendant on plaintiff to show
The sole dispute between the parties is as to whether, under a proper interpretation of the judgment of this court, the amount was properly paid or not. The appeal was therefore properly brought to this court, since this court alone can interpret its own judgments. Brown v. Land Co., 49 La. Ann. 1779, 23 South. 292; Holstein v. Henderson, 6 Mart. (N. S.) 271; Bank v. Mayor, 35 La. Ann. 411.
The motion to dismiss is overruled.
Statement of the Case.
A judgment of separation a mensa et thoro having been rendered in favor of plaintiff, she thereafter obtained judgment against defendant for $53,425.69, with legal interest from the date of the judgment (February 6, 1905), as the value of her interest in the pre-existing community, which judgment was amended, on appeal, by the deduction of $3,150, paid her as alimony pendente lite. Hill v. Hill, 115 La. 489, 39 South. 503. The judgment so rendered having been paid on February 14, 1906, defendant thereafter proceeded against plaintiff by rule, alleging that he had overpaid her to the extent of $257 (“inasmuch as she was paid interest on the full amount of her judgment from February 6, 1905, instead of deducting therefrom interest on the partial payments of alimony made before and after that date”), and praying that she be condemned to refund that amount. The rule was made absolute, and plaintiff has appealed. The judgment appealed from was predicated upon the following admission, to wit:
“By Mr. Parkerson (for defendant in rule): It is admitted that on the 14th of February, 1906, a settlement was had, and when the judgment was settled in full no allowance was made on the alimony for payment of interest, and that the amount claimed in this rule is a proper calculation. It is further admitted that Mrs. Hill drew $150 a month for alimony, and that A. M. Hill, during the same period, drew $300 per month for his own account, the expert’s report showing: ‘N. B. — From the 24th of October, 1902, Mr. A. M. Hill is credited on the ledger with $300 per month as salary for managing the affairs of the community.
“By Mr. Hart (for plaintiff in rule): To which admission, as to what Mr. Hill drew, defendant objects, on the ground that the same is irrelevant, for the reason that under the law the community between Mr. and Mrs. Hill was dissolved on the day that the suit was brought, October 24, 1902, and that in the final judgment of this cause the plaintiff was given judgment for one-half of the community as it existed on that day, and what the defendant may have used after that date is a matter with which the plaintiff has no concern, as same was not charged to her in any form in the settlement of her community rights.
“By Mr. Parkerson: It was for the purpose of showing that, at the same time when Mrs. Hill was being paid $150 per month, Mr. Hill was drawing $300 per month.
“By the Court: The objection goes to the effect.”
To which ruling the plaintiff in rule reserved a bill.
Opinion.
The judgment obtained by Mrs. Hill was predicated upon the value of the community property at the date of the institution of the suit for separation from bed and board, and interest was allowed on the whole amount awarded her. Pending the suit she was paid certain amounts as alimony, the principal of which alone was deducted in the settlement. It is clear that she was not entitled to the interest paid (in such settlement) upon the amounts which she had previously received. Curtis v. Lehmann & Co., 115 La. 45, 38 South. 887.
Judgment affirmed.
