White v. White

Supreme Court of Louisiana

White v. White

95 So. 791, 153 La. 313, 1922 La. LEXIS 2523

Supreme Court of Louisiana·Decided June 27, 1922·No. No. 24710·Published·Cited by 7 cases

Opinions

On Motion to Dismiss Appeal.

DAWKINS, J.

Plaintiff obtained in the court below a judgment of separation from bed and board, giving her the care and custody of the minor children, and for alimony at the rate of $125 per month. This judgment was signed January 6, 1921, and [315] on April 7th of the same year plaintiff took a devolutive appeal.

The judgment below was proven up as on default, after the overruling of certain exceptions by defendant, and the latter appeared as a witness, being called on cross-examination under the statute of 1908 (No. 126).

Defendant has moved to dismiss the appeal upon the ground that the “judgment (below) is in her favor, is in accordance and conforms to her pleadings and her evidence, and she cannot now be heard to ask that same be reversed, as the judgment is in her favor.”

We are informed by the brief of appellant “against the motion to dismiss” that the appeal was taken for the following reasons, to wit :

“This judgment granted the separation from bed and board, the custody of the children, and an allowance of' alimony, but did not order a partition of the community property, or maintain the injunction, against alienatipn of same by defendant. This was not noticed by plaintiff in time for a motion for' a new trial, and an appeal was prosecuted to correct this manifest oversight and error of the district judge.”

An examination of the petition and the evidence clearly demonstrates that a demand for partition of the community property was made, and that proof of its nature and extent was offered. Theréfore this presents an issue or demand which, in effect, was rejected by the silence of the judgment. We do not feel called upon, or think it proper, to pass upon this issue on a motion to dismiss. Any one aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. C. P. art. 565, Soniat v. Whitmer, 141 La. 240, 74 South. 916.

The motion to dismiss is therefore denied.

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On Motion to Dismiss Appeal.

DAWKINS, J.

Plaintiff obtained in the court below a judgment of separation from bed and board, giving her the care and custody of the minor children, and for alimony at the rate of $125 per month. This judgment was signed January 6, 1921, and [315] on April 7th of the same year plaintiff took a devolutive appeal.

The judgment below was proven up as on default, after the overruling of certain exceptions by defendant, and the latter appeared as a witness, being called on cross-examination under the statute of 1908 (No. 126).

Defendant has moved to dismiss the appeal upon the ground that the “judgment (below) is in her favor, is in accordance and conforms to her pleadings and her evidence, and she cannot now be heard to ask that same be reversed, as the judgment is in her favor.”

We are informed by the brief of appellant “against the motion to dismiss” that the appeal was taken for the following reasons, to wit :

“This judgment granted the separation from bed and board, the custody of the children, and an allowance of' alimony, but did not order a partition of the community property, or maintain the injunction, against alienatipn of same by defendant. This was not noticed by plaintiff in time for a motion for' a new trial, and an appeal was prosecuted to correct this manifest oversight and error of the district judge.”

An examination of the petition and the evidence clearly demonstrates that a demand for partition of the community property was made, and that proof of its nature and extent was offered. Theréfore this presents an issue or demand which, in effect, was rejected by the silence of the judgment. We do not feel called upon, or think it proper, to pass upon this issue on a motion to dismiss. Any one aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. C. P. art. 565, Soniat v. Whitmer, 141 La. 240, 74 South. 916.

The motion to dismiss is therefore denied.

White v. White, 95 So. 791, 153 La. 313, 1922 La. LEXIS 2523 (La. 1922).

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