Opinion
No. 38829.
February 16, 1948. Rehearing Denied March 22, 1948.
Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.
Action for divorce on ground of two years' separation by Joseph H. Moser against Mrs. Gladys Wilson Moser, wherein the defendant reconvened, praying for permanent custody of a child of the parties, for alimony, and for partition of community property. From a judgment decreeing the plaintiff a divorce, but granting defendant custody of the child and alimony, and enjoining plaintiff from alienating community property, the plaintiff appeals and the defendant moves to dismiss the appeal insofar as it relates to the divorce decree.
Appeal, insofar as it relates to divorce decree, dismissed.
Andrew H. Thalheim, of Gretna, for appellant.
Waverly A. Henning, of New Orleans, for appellee.
This case is before us for consideration of defendant's motion to dismiss that part of the appeal taken by plaintiff from the judgment of the district court decreeing a divorce between him and the defendant.
The plaintiff brought this action for divorce on the ground of two years separation. In his petition he prayed for a judgment decreeing a divorce between him and the defendant and for the permanent custody of their minor child. The defendant reconvened, praying for the permanent custody of the child, for alimony for herself and the child, and for a partition of the community property. There was judgment in the lower court in favor of the plaintiff decreeing a divorce between him and the defendant, but granting the defendant custody of the child and alimony for her own and the child's support, and enjoining the plaintiff from alienating the community property. The plaintiff appealed. The defendant filed a motion to dismiss the appeal insofar as it relates to the decree of divorce in favor of the plaintiff.
The plaintiff has no right to appeal from that portion of the judgment which gives him the relief prayed for in his petition i. e., a judgment of divorce between him and the defendant. State ex rel. John T. Moore Planting Co., Ltd., v. Howell, 139 La. 336, 71 So. 529; White v. Hill, 168 La. 92, 121 So. 585. He should not be allowed to persist in his appeal from the divorce decree and thereby delay the defendant in exercising her right to have the community property partitioned.
For the reasons assigned, the appeal, insofar as it relates to the judgment of divorce, is dismissed at plaintiff's cost.
O'NEILL, C. J., absent.