State ex rel. Holbrook v. Judge of the Eighth District Court , 24 La. Ann. 601 ( 1872 )

Howell, J.

This is a proceeding by mandamus to obtain a suspensive appeal from a judgment on a rule for alimony at five hundred dollars per month from twentieth of June, 1872, in tho suit of J. B. Holbrook v. A. M. Holbook, No. 7769, in the Eighth District Court for the parish of Orleans.

The judge answers that the judgment is not appealable, because a remittitur was entered by the plaintiff for all her claim, which exceeded five hundred dollars.

The claim in the rule, dated ninth of September, 1872, was for “ five hundred dollars per month alimony during the pendency of this suit, dating and to commence from the date of the institution of this suit, to wit, the twentieth day of Juno, 1872.” On the trial of the rule on the eighteenth of September, 1872, judgment was rendered as follows :

“It is ordered and decreed that the rule taken herein by plaintiff for alimony be made absolute so far only as to allow the plaintiff alimony at the rate of two hundred and fifty dollars per month from the twentieth day of June, 1872, to be paid by defendant to plaintiff monthly. And considering the remittitur filed by plaintiff, it is further ordered that execution do issue against the defendant Alva M. Holbrook for the amount now due, to wit, the sum of five hundred •dollars.’’

The remittitur, dated sixteenth of September, 1872, two days prior •to the judgment, appears to be in the following form: “ On motion of John B. Howard and Edward Phillips, attorneys for plaintiff, it is ordered that a remittitur be entered on the claim for alimony filed herein by plaintiff for all cl limed by her in this suit exceeding five hundred dollars, which may be due on the rendition of the judgment in this rule for alimony from the twentieth day of June, 1872.”

Prom the terms of the rule and judgment it is clear that the demand was for more than five hundred dollars, and that the defendant was condemned on the eighteenth of September to pay more than that •amount — two hundred and fifty dollars per month from the twentieth day of June, 1872, to be paid monthly by the defendant during the ■pendency of the suit; and unless the remittitur has reduced the ■demand for alimony during the pendency of the suit to five hundred dollars only, the defendant is entitled to an appeal. But no such construction seems to have been put on it or can properly be put on it. •It only remits the excess over five hundred dollars due at the date of the judgment, and does not affect the decree for the monthly alimony •at two hundred and fifty dollars per month thereafter and during the pendency of this suit, or the obligation of the defendant to pay such alimony during such period. -

It is therefore ordered that the mandamus herein be made per■emptory.