Crum v. Upchurch, 40571

• Decision Date: 22 April 1957
• Docket Number: No. 40571,40571
• Citation: 232 Miss. 74,94 So.2d 321
• Parties: E. R. CRUM, Jr. v. Mrs. Jean S. UPCHURCH.
• Court: Mississippi Supreme Court

Page 321

94 So.2d 321

232 Miss. 74

E. R. CRUM, Jr. v. Mrs. Jean S. UPCHURCH.

No. 40571.

Supreme Court of Mississippi.

April 22, 1957.

Montgomery & Varnado, Belzoni, for appellant.

L. G. North, W. D. Womack, Belzoni, for appellee.

McGEHEE, Chief Justice.

The appellant in this cause has filed a motion to strike from the record on this appeal Page 1 to 61 thereof inclusive, on the ground that they relate to former proceedings between the same parties involving a divorce, custody of children and the allowance of alimony to the wife, and for the support of two of the children of the marriage, the custody of whom was awarded to the wife, whereas the present proceeding involves 'a petition to reopen the cause and allow partition' of their residence property, where they had formerly resided.

Rule 2 of the Revised Rules of this Court is invoked as the ground for the motion to strike from the record the pages thereof hereinbefore referred to. That rule provides: 'A transcript shall not contain any part of the case except the pleadings, evidence, instructions, bills of exceptions and the order, judgment or decree appealed from * * *'.

The appellant cites in further support of his motion Sections 1284, 1291 and 1644, Code of 1942, and the following decisions of this Court: Roberts v. Lyon Co., 124 Miss. 345, 86 So. 851; Barlow v. Serio, 129 Miss. 432, 91 So. 573; Bridgeman v. Bridgeman, 192 Miss. 800, 6 So.2d 608; Hudson v. Belzoni Equipment Co., 211 Miss. 178, 51 So.2d 223.

But in this same numbered cause, between the same parties, a decree of divorce was rendered on December 6, 1949, wherein two of the four children were awarded to their mother, the appellee here, and the other two awarded to the father, the appellant here, and the mother was granted a divorce. It appears that on September 23, 1949, the parties had entered into a separation agreement in writing and wherein it was stipulated that the father was to pay the sum of $100 per month beginning October 1, 1949, for the support of the mother and the sum of $25 per month for each child kept and maintained by her in the home located on the land involved in the present suit for partition. However, the divorce and custody decree of December 6, 1949, makes no reference to this written contract or to any agreement for the payment of alimony by the father.

Thereafter, on October 30, 1954, there was a petition filed by the mother to modify the former decree because of changed circumstances so as to require the father to pay to the mother of the children the sum of $150 per month for her support and the sum of $50 per month for each of the children in her custody. In this petition the fact was alleged that the written contract had been entered into by the parties. The father filed an answer, plea in bar and cross-bill to the petition for modification, and admitted that he had complied with the terms 'of said pre-divorce contract from the time of the rendition of the said divorce decree until some time in the month of August 1954.' He alleged that the mother had since remarried.

It appears from the separation agreement that the parties agreed that the mother was to have the use of the residence so long as she remained unmarried, and the outcome of that proceeding for modification of the former decree was that the proceeding was dismissed without prejudice on December 13, 1955. But in the meantime it appears that a decree had been rendered on December 8, 1954, upon the petition for modification of the original divorce and custody decree, and wherein the father of the children was required to pay $37.50...