119 So. 2d 495 | La. | 1960
Lead Opinion
On December 24, 1957, a judgment was read and signed in the Civil District Court
From this judgment defendant Edward J. Randle perfected a suspensive and de-volutive appeal to this court. This appeal is still pending here and has never been fixed for argument on the merits.
The appellant Randle has filed a motion in this court alleging that while his appeal was pending, he instituted a suit for divorce against his wife on the ground that they had been living separate and apart for over two years, and that a judgment was rendered in his favor and against his wife decreeing an absolute divorce and reserving their respective rights in the community property.
Appellee, the wife, has filed a motion in this court alleging that appellant’s allegations of fact as to the absolute divorce are true and correct, but denying appellant’s right to have the separation suit dismissed^ Instead, she prays that his appeal be dismissed on the ground that it has abated by the judgment of absolute divorce.
In the instant case, since the husband has been granted on statutory grounds an absolute divorce which completely severed the bonds of matrimony, his wife’s separation suit now pending on appeal in this court went out of legal existence, and therefore the issue of the correctness of the decree granting her a separation from bed and board has become moot. Thornton v. Floyd, 229 La. 237, 85 So.2d 499, and authorities there cited; see Murphy v. Murphy, 229 La. 849, 87 So.2d 4. It is to. be observed, however, that the judgment appealed from awarded to the wife for herself and the minor child alimony of $300 a month, and the alimony right thus acquired by the wife pursuant to this judgment of separation from bed and board remained in force until the rendition of the final decree of divorce and will be enforceable in the event we affirm the judgment awarding alimony. Thornton v. Floyd, supra. There is therefore still remaining before this court the correctness, of the judgment of the lower court awarding alimony in this amount, and appellant is entitled to have the judgment appealed from reviewed to this extent.
Since the issue of the correctness of the alimony award in the separation suit remains to be determined by this court on appeal, and possibly also the award of attorney’s fees, we cannot at this stage of the proceedings dismiss either the appeal or the separation suit in toto.
For the reasons assigned appellant’s motion to dismiss the separation suit and ap-pellee’s motion to dismiss the appeal are both denied. Each party is to pay one-half the costs in this court in this proceeding.
. No appeal was taken from the judgment of divorce, and it is now final.
Concurrence Opinion
concurs in the decree denying the motion to dismiss insofar as the judgment deals with the alimony award, custody of children and attorney’s fees, but should be maintained as to the separation decree.