Carter v. Melchior

On Rehearing.

LAND, J.

[1] We have re-examined the testimony in this ease, and carefully weighed and considered the same, and we are convinced that the judgment of the lower court is correct. The trial judge saw the witnesses and heard them testify, and necessarily passed upon their credibility.

As the testimony in this ease is conflicting, and as parts of plaintiff’s testimony are highly suspicious and other parts wholly improbable, we find no good reason to disturb the conclusions reached by the trial judge. We agree with him that the charge of adultery against the defendant was not proven.

Our former decree is therefore set aside, and the judgment of the lower court affirmed, and made the final judgment of this court.

PROVOSTY, C. J., dissents. O’NIELL, J., concurs in the result.

On Application to Amend Judgment.

LAND, J.

The judgment in this case was rendered Monday January 30, 1922, and has not yet been remanded for execution.

Plaintiff has filed an application in this ease requesting the court to deny the alimony in toto, and, in the alternative, to reduce it from $25 a week to $S3.50 per month, as the judgment below allowed the defendant alimony at the rate of $25 per week, in excess of the .prayer in her rule.

[2] The judgment of which the plaintiff complains was rendered on rehearing, and no reservation was made therein for an additional application for rehearing. The judgment has become final as to the merit's of the case, and this court is without jurisdiction to reopen its final judgments; although it may correct, after final judgment, mere clerical errors appearing therein. Levert v. Berthelot, 127 La. 1022, 54 South. 329; State v. F. B. Williams Cypress Co., 132 La. 949, 61 South. 988, Ann. Cas. 1914D, 1290.

The counsel for defendant also have requested the court in their supplemental brief, page 40, to correct, as a “clerical error in the judgment” of the lower court, the allowance of $25 per week as alimony awarded defendant, as such allowance was ultra petitionem; the amount of alimony claimed by defendant in her rule being the sum of $83.50 per month.

*305As both counsel for plaintiff and defendant have pointed out and requested the correction of this error, which is obvious, and which was inadvertently committed by the court in its last opinion and decree herein, in affirming the judgment appealed from, we feel that we need no other authority for its correction than the joint request of the parties themselves to this suit.

It is accordingly adjudged and decreed that the judgment herein rendered on January 30, 1922, be so amended and corrected as to decrease the alimony awarded defendant from $25 per week to $83.50 per month.

PROVOSTY, O. J., dissents, adhering to original opinion.