32 La. Ann. 13 | La. | 1880
On Motion to Dismiss the Appeal.
The appellee moves to dismiss the appeal in this -case on the ground that the lower court having rendered an order of -appeal, and fixed the bond at $13,500, was divested of jurisdiction, and therefore could not subsequently revoke the order and fix the bond for .a smaller amount.
On the 19th November, the order of appeal was rendered, and the ■amount of bond fixed at $13,500. No bond was filed in pursuance of this order. The next day, 20th of November, the court amended the
It is therefore ordered that the motion to dismiss be overruled.
In this case, the transcript was filed in this court on the 19th of December 1872, and — on the 21st of said month — the plaintiff and appellee moved to dismiss the appeal, on the ground that the bond was not for the amount fixed by the Judge’s order. That motion was denied in 1875.
In February and March 1879 — more than six years after the filing of the transcript — plaintiff again moved to dismiss the appeal, and— this time — on the grounds:
1. That the transcript is defective, insufficient and incomplete. ,
2. That — in its own nature and in amount — the decree of the lower court is such that it could not legally have been appealed from.
In “West vs. Davis & Kuntz ” — -decided on the 7th of April — this court held that the motion to dismiss an appeal must be made within three days after the filing of the transcript, and that it must be so made even when — for the very causes urged by the mover — we may, ex proprio motu and after that delay, dismiss the appeal.
The motions to dismiss, filed by plaintiff in February and March, 1879 are therefore — denied.
A long, rambling, and inconsecutive petition, apparently drawn by the plaintiff and signed by herself alone, obscures her demand. From the prayer we gather that it is for a separation and divorce from the defendant, and for alimony, and has coupled with it an action for the nullity of a decree for divorce previously obtained by him against her. This first judgment was rendered December 20,1871, and was unappealed. The present suit was instituted June 20,1872.
To this demand, the first judgment is pleaded as res acljuclicata. So far as this plea is made to the action of nullity, it is untenable. A judgment, which is itself the object of attack in an action for its nullity, cannot be pleaded as the thing adjudged in bar of such action, if it is brought within a year from the rendition of the judgment attacked. Edwards’ case, 29 Annual, 597.
Upon a rule, taken in this suit by the plaintiff, touching the alimony, a judgment was rendered in September 1872 granting it at ¡$250 a month, and this appeal is from that judgment. The husband died in January 1876 pending the appeal, and his executors are now parties to it.
But it does not follow that no judgment for alimony can be given because there is as yet no judgment for separation. On the contrary, the allowance for alimony is always made pendente lite, and is not conditioned on the success of the principal demand. Le Beau v. Trudeau, 1 Mart. N. S. 93. Rowley’s case 19 La. 557.
The judgment of December 1871, unappealed and unreversed, destroyed the relation of husband and wife. When this suit was instituted in June 1872 that relation did not exist. It is in this sense, we take it, that the plea of res adjudícala is made. A demand against a man, not a husband, by a woman, not his wife, for alimony is unknown. It is because of the relation of husband and wife that the right to alimony exists.
The present suit assumes that that relation does exist, or did at the time of its institution. Its object and purpose was to sever it. It assumes that the judgment in the previous suit was and is a nullity. It attacks that judgment for alleged causes of nullity, not absolute but relative, and ignores the effects and consequences of that judgment, and treats it as an absolute nullity quoad those consequences. It assumes as accomplished the object which it has to accomplish. It anticipates what it wants to be adjudged, and bases upon the judgment, to be hereafter obtained in that regard, a demand which is only allowable when such judgment has been obtained.
The judgment of divorce of December 1871 had become final. The parties to this suit were thenceforward not husband and wife until that judgment is annulled. As the present suit, so far as it is a demand for alimony, is founded necessarily upon the assumed existence of that relation, it must fall with the removal of its foundation.
The demand is prematurely pressed, and the judgment upon it is error. When a judgment of nullity has been obtained (if the plaintiff shall succeed in that) she will be in a legal condition to have her suit for alimony considered. It is only the interlocutory judgment, decreeing alimony, that is before us. Therefore
It is ordered and decreed that the judgment of-the lower court touching the alimony is avoided and reversed, and that the plaintiff’s demand in that particular is dismissed as in case of nonsuit, and that the defendant’s executors recover of her the costs of this appeal.
Rehearing refused.
