Folda v. Folda

SIMPSON, J. The bill in this case was filed, by the appellee for an allowance of alimony. Whether the statement by the chancellor, as to the defendant being a partner in the firm of L. Folda & Co., was a mere expression of an opinion, or a decree to that effect, and whether the register was in error in treating it as a decree and refusing- further evidence on that subject, we will not stop to discuss. Upon an examination of all of the evidence in the case, including the evidence taken before the register, we hold that the complainant has not sustained the burden resting on her to prove that the defendant was an owner of a half interest in the firm of L. Folda & Co: The testimony of L. Folda and the respondent is positive that the respondent did not and does not own any interest in said firm. There is not any evidence tending to show that he ever paid any money into said firm, and the evidence is without conflict that all the money he ever received from said firm, whether as wages or as his part of the profits of the business, was $75 per month, and both of said witnesses testify that this was merely compensation for his services. Said L. Folda did not testify, as insisted by appellee, that he paid the amount each month to the respondent as “part of the money [288] coming to him,” bnt that he paid to the respondent the average wages of a salesman; that he paid to him each month in cash “the part money coming to him,” so that, whatever it was, he paid him, not a part of the money coming to him,- but the part coming to him; in other words, all that was due him. We do not think that the circumstances adduced in evidence are sufficient to rebut the positive testimony that said respondent is not a partner in said firm. Consequently it was error to consider a half interest in said firm as belonging to the respondent. All that he has, according to the testimony, is an income of $75 per month, and a half interest in 40 acres of land, the entire tract being estimated as worth $400, which is not shown to be producing any income; and it is shown that the complainant owns property producing an income of $100 per annum. Under all the evidence, we hold that an allowance of $30 per month as alimony is sufficient.. The decree of the chancery court is reversed, and a decree will be here rendered, requiring Robert Folda to pay Sarah Folda, as alimony, from the time the bill of complaint was filed, to wit, March 28, 1908, the sum of $30 per month, the amount now due to be payable at once, and future monthly allowances on the last day of each month. The case will remain on the docket of the chancery court of Marengo county for such future orders as may be necessary. Reversed and rendered. All the justices concur.