107 La. 628 | La. | 1901
On Motions to Dismiss Appeals.
Statement.
The opinion of the court was delivered by
In the original petition filed in this ease, the plaintiff prayed for judgment of separation from bed and hoard, for her interest in the community, and for the restitution of $200 of paraphernal funds, and she asked for an allowance of $25.00 a month as alimony, for an inventory of the property of the community and for an injunction restraining her husband from disposing of the same and from molest
After these proceedings had been taken, the defendant, upon December 9th, took a devolutive appeal from the judgment of separation from bed and board, and obtained, from this court, an order, made “without prejudice,” and subsequently rescinded, to consolidate it with the appeals already filed; -and the appellee moves to dismiss said appeal, on the ground that the judgment appealed from has been acquiesced in and that the appeal is taken only for the purpose of sustaining the appeals previously taken.
OPINION.
Considering the motion last above mentioned; the defendant, undoubtedly, had the right to appeal, at any time within twelve months, from the judgment obtained by his wife decreeing a separation from bed and board, and we are of oj) inion that the facts disclosed by the record do not warrant us in holding that he deprived himself of that right by acquiescence, the more particularly as, in view of the settled policy of our law, the courts of this state will not lend their aid to the dissolution of marriages by the consent or acquiescence of the parties. The most that can be said as to the attitude of the defendant is, that he contended in the district court that the suit for separation fram bed and board and for the dissolution of the community was a. distinct affair from the suit, which followed, for the partition of the community property, and that, the judgment in the former suit having become final, in the district court, the suit for partition should have been filed and docketed a? a separate proceeding. This does not amount to an acquiescence in the judgment decreeing the separation from bed and board, and whatever may have been the defendant’s views, at that time, and whatever may be his motive now, he did not thereby lose his right to appeal from that judgment, and his appeal must, therefore, be sustained.
The same reasoning necessarily applies to the appeal from the judgment dissolving the injunction sued out by the defendant and dismissing the suit brought by him to restrain the execution of the judgment rendered in the action for partition, and the same ruling must be made.
It is, therefore, ordered, adjudged and decreed, that the motion to dismiss the appeal taken from the judgment decreeing the separation from bed and board be denied, and that the motions to dismiss the appeals from the judgments decreeing the partition and dismissing the injunction suit, respectively, be sustained, and that said appeals be, accordingly, dismissed.
Rehearing refused.