The justice who heard this case entered a decree that execution be issued for the payment of the alimony, in accordance with the prayer of the petition. The libellant both excepted and appealed. We see no reason to doubt that exceptions lie in such a case. Pub. Sts. c. 146, § 34; c. 153, § 8. Sparhawk v. Sparhawk, 120 Mass. 390. As these exceptions were filed within eight days after the ruling excepted to, and as the presiding justice allowed them, it is to be presumed that the time of filing was extended under the Pub. Sts. c. 153, § 8.
The question of the validity of the decree is properly before us. It is clear that the decree in this case was entered under a misapprehension on the part of the presiding justice. It was based upon the supposition that, the record showed that there had been a decree allowing the libellee alimony. There being cross libels, an agreement had been made that the husband should pay the wife “ alimony during the pendency of the libels, at the rate of forty dollars per week.” But upon examination of the record it is found that no decree of the court was passed allowing alimony. The court has not the power to order an execution to issue unless there is a judgment or decree of the court upon which it is founded. It follows that the decree ordering an execution to issue was erroneous.
There is no doubt of the power of the court to allow alimony in favor of the wife, after a decree nisi has been rendered against her. Pub. Sts. c. 146, §§ 15, 36. Graves v. Graves, 108 Mass. 314.
The case may stand for a further hearing before a single justice, upon such amendment of her petition as the petitioner may be advised to make.
Decree reversed.