An order of court compelling a husband to pay his wife and child alimony during the pendency of the suit, in the sum of $20 a week, is an interlocutory decree from which no appeal should lie unless that order causes irreparable injury:
Article 566 of the Code of Practice reads:
"One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury."
It is difficult for me to understand in what respect a husband is caused irreparable *Page 1088 injury by being ordered to perform, by a judge, his legal obligation to support his wife and child. There is no finality to this order. It is pendente lite. It is at all times subject to change, to modification, and even, to being vacated, insofar as it relates to the wife, because, if the husband can show that the separation was caused through no fault of his, the alimony to her must be suspended. The district judge must be guided by the law and he is prohibited from fixing the alimony due the wife for more than one-third of the husband's income. See R.C.C. Art. 160. That is the maximum amount the judge can fix. He cannot fix the amount for any greater sum, but, he has been granted the discretion to fix it at a lower amount. The district judge is in a better position to know the needs of the parties than this Court. There is testimony as to the income of the husband, the necessities of the wife, and he has heard the witnesses and is in a better position to judge their credibility.
This suspensive appeal from the judgment of alimony for $20 a week to the wife and child also suspends the payment of alimony to that child. The only irreparable injury that is done is to the child, by the granting of this appeal. This child may or may not receive the necessities of life by reason of this appeal. Therefore, this is a compelling reason why the jurisprudence should be changed.
I respectfully dissent from the majority opinion handed down by this court. *Page 1089