On Rehearing. In the last part of the foregoing opinion, in fixing the period to which the decree of modification should relate, we cited the Franck and Brandt Cases, supra. In arriving at this conclusion we were perhaps misled by a note to the Cohen Case in 11 Ann. Cas. 520, which cites said cases, and it appears from a closer examination of said note as well as the said cases that, while the remarriage of the wife does not ipso facto annul the alimony, it affords a reason for doing so, and that the modification of the existing decree should operate upon the alimony as of the date of the remarriage. This rule also conforms to the reason for same, that is, that the divorced husband should not be forced to support his former wife after she has married another who is able to do so. We are also aware of the fact that the first installment of the deferred payments had not accrued — had not matured, technically speaking — but we think that a court of equity has the power to prorate or apportion same so as to meet the ends of justice, and that the appellee should be paid the portion of the $1,000 covering the year of the remarriage, that is, for the period between the time it started and when she remarried, to wit, from July 16, 1918, to December 7, 1918, amounting to $391.82 with interest since July 1, 1919, the maturity of said payment. The former decree as rendered by this court is accordingly modified and corrected so as to change the amount to be paid the appellee from $916.66 to $391.82; but in all other respects the same is to remain unchanged.
The appellant had to appeal this case in order to correct an erroneous decree against him, so we taxed the cost of said appeal to the appellee. As to all other costs, the petition for a modification of the existing decree was for the benefit of the appellant, who sought to cancel the entire amount of the unpaid alimony, and we thought and still think that said cost should be paid by him.
Appellee has suggested, upon rehearing, that this appeal should be dismissed because the appeal bond is not indorsed approved by the register, a point which should have been made before the case was submitted, and if then made the appeal would not have been dismissed. Section 2886 of the Code of 1907. The bond is a good common-law obligation, even if the approval was essential to make it a statutory bond. The appellee also suggested that in ascertaining the amount to be allowed her all of the indebtedness should be considered rather than the installment of the year of remarriage, Should we pursue this method the appellee would not be the gainer, for if we considered the whole amount the proportion allowed the *Page 10 appellee would have to be based on the time period of maturity of the last one.
The opinion is corrected and the decree modified as above indicated, and the application for rehearing is overruled.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.