DeLesdernier v. DeLesdernier

45 La. Ann. 1364

Opinions

On Motion to Dismiss

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff sued the defendant for a separation from bed and board, and for a moneyed judgment for the sum of' $1610 for paraphernal funds of hers which her husband had received and converted to his own separate use and benefit.

The district judge rendered judgment in her favor in conformity to the prayer of the petition.

The defendant appealed, and the plaintiff has filed in this court a. motion to dismiss the appeal in so far as it concerns the moneyed judgment on the ground that it is below our constitutional jurisdiction as to amount.

Separation from bed and board carries with it separation of goods and effects. C. O. 155.

When the plaintiff suing for a separation from bed and board asked for a separation of property and for judgment for moneys received by the defendant during the marriage belonging to her and converted by him the action was an entirety, the demand and prayer for aseparation of property and for a moneyed judgment for a specific amount being merely an incident of the suit, with which it is now inseparably connected.

As matters stand the action is of the nature of a mixed action, where the principal demand carries its incidental demand along with it, as does, for instance, a petitory action, when it is accompanied by a demand for fruits and revenues. ■

There is no analogy between this case and that of Favrot vs. Baton Rouge, 38 An. 230.

In that case we dismissed no appeal, but limited our inquiries on appeal to the single issue which the Constitution directed us to consider in such matters. The whole case was before us on a single special issue. When we disposed of that our duty under the Constitution ended.

In the case at bar there is a case before us properly and legally within our jurisdiction on a main demand with an incidental demand properly attached to it by appellee — both having been decided by the district judge in one and the same judgment, and incapable of being separated from each other on appeal.

The motion for the dismissal is not well taken and the application is denied.