Lee v. Koester

OVERTON, J. This is an appeal from a judgment rendered in favor of plaintiff against her husband, John T. Koester, refusing to reduce a judgment allowing alimony to plaintiff, during the pendency of the litigation, in a suit for separation from bed and board. The defendant, who is also the appel-' lant, has filed a motion to dismiss the appeal on the ground that, since the lodging of the transcript in this court, the suit for separation has been tried on its merits and judgment rendered dismissing plaintiff’s demand as in case of nonsuit, and rejecting a reeonventional demand for a separation filed by defendant. Defendant has attached to his motion a certified copy of the judgment rendered, which shows‘that the judgment was rendered as above stated. The judgment was signed on November 9, 1922, and since then more than the year allowed for a devolutiva appeal has elapsed, but no appeal has been taken. In our opinion, the motion should be allowed. Alimony, pendente lite, in a suit for separation, or for divorce, is merely an incident of such suit. The suit for separation having been finally determined, and no appeal having been taken from the judgment rendered therein, the right to alimony, because of the suit, falls. Even as to alimony in arrear, if there should be any, we are not of the opinion that payment of it may be now enforced by the wife. The situation is the same as if no suit for separation had been filed. Hence the question as to whether the alimony should be reduced has become a dead issue. For the reasons assigned, the motion is allowed, and the appeal is accordingly dismissed, at appellant’s costs. Rehearing refused hy Division A, composed of O’NIELL, O. J., and ROGERS and BRU-NOT, JJ.