
    (99 South. 202)
    No. 25763.
    LEWIS v. LEWIS.
    (Oct. 29, 1923.
    On Motion to Dismiss, Jan. 21, 1924. Rehearing Denied Feb. 25, 1924.)
    
      (Syllabus by Editorial Staf.j
    
    Appeal and error <&wkey;80l(3) — Motion to dismiss may include plea of res adjudicata based on case tried after appeal.
    In a suit by a husband against his wife to compel her to pay him a certain, sum a month for maintenance, etc., wherein plaintiff appealed from an adverse decision, defendant was entitled, in moving to dismiss the appeal, .to include a plea that the identical issue involved had since the filing of the appeal been tried between the parties in a divorce suit, and was res judicata, prima facie proof of the facts alleged being annexed to the motion as required by Code Prac. art. 902.
    
      ' Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Percy Saint, Judge.
    Suit by George T. Lewig against Mrs, Florence B. Lewis. Defendant’s exception of no right or cause of action was sustained, and plaintiff appeals. On motion to dismiss appeal.
    Appeal dismissed.
    Paul A. Sompayrac, of New Orleans, Em-met Alpha, of Franklin, and Donelson Caffery, of New Orleans, for appellant.
    Paul Kramer and Wilbur P. Kramer, both of Franklin, for appellee.
    By Division B, composed of Justices DAW-KINS, LAND and LECHE.
   LECHE, J.

Plaintiff alleges that he is a resident of the city of New Orleans; that on March 19, 1888, he was married to defendant in the parish of St. Mary; that he is now 67 years of age, in poor health, without means and unable to provide for himself; that his wife is the owner of a large estate from which fruits and revenues belonging to the community are derived; that, under the provisions of the Civil Code, he and his wife owe each other mutual aid, fidelity,/and support; that she is amply able to pay and should be compelled to pay him 1100 per month; that he is in extreme need and that she should be compelled to pay him said amount pendente lite. The prayer of plaintiff’s petition is in accordance with these allegations.

To this demand, defendant filed an exception of no right or cause of action. That exception was maintained by the district judge, and plaintiff has appealed.

Defendant, and appellee, now moves this court to dismiss plaintiff’s • appeal 'on the ground ,that the identical issue involved in this case has been tried between the parties, since the filing of thife' appeal, in a suit for divorce brought by defendant against plaintiff; that the said issue was presented in said suit, decided adversely to the plaintiff herein, and the judgment disposing of - the same has now become res adjudicata.

Mover annexes to his motion defendant’s petition for divorce, plaintiff’s answer thereto containing a prayer for the same relief prayed for in the present suit, together with the judgment granting defendant an absolute divorce and rejecting the demand of plaintiff herein for alimony.

The plea presented by appellee in her motion to dismiss is one which may be filed in this court. C. P. 902. It is grounded upon facts alleged to have come into existence after the appeal was lodged here, and prima facie proof of those facts is annexed to appellee’s motion as required by the cited article of the Code of Practice. In order to ascertain whether the judgment annexed to appellee’s motion has become final, in order further to give appellant an opportunity to contradict the facts alleged in the motion to dismiss, and in order to better promote the ends of justice.

It is ordered that this cause be remanded to the district court for the sole purpose of taking evidence on the issues of fact raised in the motion to dismiss, and that such evidence, when taken, be filed as part of the record in this court.

On Motion to Dismiss Appeal.

The supplemental transcript filed herein, in obedience to the mandate of this Court, shows that the judgment of the district court granting Mrs. Lewis an absolute divorce was rendered on April 28, 1923, that no appeal was taken therefrom within the time prescribed by law, and that said judgment has now become final, and, the facts alleged by defendant and appellee in her motion to dismiss being established and not contradicted.

It is ordered that the appeal herein be dismissed.  