
    Grover C. Shepherd v. Flora Shepherd.
    (Decided January 25, 1927.)
    Appeal from Carter Circuit Court.
    Husband and Wife — Claim of Bar by Former Alimony Action. is Untenable, Where Reply Alleging Dismissal Without Prejudice is Uncontroverted. — -Claim that former action for alimony is bar to present action for alimony is untenable, where allegations of reply that former action was dismissed without prejudice, and that only allowances made in it were pendente lite allowances, are uncontroverted.
    J. M. YORK and CARLTON COUNTS for appellant.
    JOHN M. THEOBOLD for appellee.
   Opinion of the Court by

Commissioner Sandidge — ■

Affirming.

In the Carter circuit court, in' an action by appellee, Flora Shepherd, against appellant, Grover C. Shepherd, judgment was entered divorcing her from him and awarding her $3,000.00 alimony, payable at the rate of $75.00 per month on the first day of each month, beginning May 1, 1926, the custody of her daughter, Opal Shepherd, and the costs of the action, including attorney’s fees. This appeal has been prosecuted from so much of the judgment as awarded alimony. ■

Appellant insists that prior to-the institution of this action appellee had instituted against him-in the Lawrence circuit court an action for alimony, which had been prosecuted to judgment, by which she had been awarded $40.00 per month alimony. His answer herein pleaded the former action and judgment for alimony in bar of her right to recover alimony against him herein. Copies of the petition in the former action and the judgments relied on were filed as exhibits with appellant’s answer. By reply herein filed appellee admitted that she had formerly instituted action for alimony in the Lawrence circuit court, but denied that final judgment was ever entered therein or any orders or judgments other than for pendente lite allowances; and she further pleaded that that action was dismissed without prejudice before the institution of this action. No rejoinder to that reply was filed nor was any order entered controverting its affirmative allegations of record. The two orders or judgments of the Lawrence circuit court, copies of which were filed as exhibits with appellant’s answrer, diseñóse that they were mere pendente lite allowances; and no final judgment was filed with appellant’s answer or introduced in evidence. The allegation in appellee’s reply that the former action was dismissed without prejudice stands in the record uncontroverted. Therefore, the entire argument in appellant’s behalf, as the questions are presented by brief of counsel, based upon former trial and judgment concluding the question of alimony between the parties, is without foundation to support it.

On the merits no question as to the correctness of the judgment awarding aliiliony is raised for appellant nor is the amount awrarded questioned. This court’s consideration of the facts appearing in evidence leads to the conclusion that neither question could have been successfully raised.

The judgment, therefore, will be affirmed.

Judgment affirmed.  