A few days later the opinion of the Supreme Court in the case of Fiesler v. Fiesler was published, and thereafter the circuit court reconsidered the present case, and subsequently filed the subjoined opinion:
(Filed December 26, 1911.)
“5269. Margaret B. Mathers vs. Warren Mathers; heard on appeal.
“Smith, P. J.; Swing, J., and Jones, J., concur.
“In accordance with our construction of the case of Fiesler v. Fiesler, 83 O. S., 200, heretofore announced, we are of opinion that plaintiff should be allowed a share of defendant’s property, and adjudge to her as just out .of his real estate such an amount thereof as will equal in value the sum of $2,500.” •
The husband also prosecuted error to the action of the common pleas court in allowing alimony pendente lite, etc., against him. In that proceeding the circuit court held:
(Filed June 5, 1911.)
“5215. Warren Mathers, plaintiff in error, vs. Margaret B. Mathers, defendant in error.
“Smith, P. J.; Swung, J., and Jones, J., concur.
“We think the order allowing alimony pendente lite entered July 14th, 1909, ordered the defendant to pay the sum of $60 immediately after the filing of that entry, and that upon the 25th day of that same month and the 25th day of each month thereafter, the defendant was ordered to pay the sum of $60.
“From the language of this order we can place no other construction upon it different than that of the trial court.
‘ ‘ While it is true that on June 18, 1910, a divorce was granted to defendant by reason of the aggression of the plaintiff, nevertheless the question of alimony was on July 2, 1910, continued for further and final order by the court. This, therefore, we think left in operation the decree for alimony pendente lite entered by the court July 14, 1909.
“We can not see how we can assist defendant in allowing him a credit for thq amount of costs paid. These costs were ordered paid by theplaintiff, but defendant voluntarily paid them; this liability he assumed but was not compelled to do so.
“The court below and this court having found the defendant liable for the installments of alimony, and that they should have been paid as ordered, interest upon the- same would, naturally attach.
“The judgment of the court below will be affirmed.”
Error was prosecuted by the husband to the Supreme Court, where the judgment below ivas affirmed without opinion on April 22, 1913, 87 Ohio State. One of the considerations urged upon the Supreme Court by counsel for the husband was that—
“Alimony is nourishment or maintenance, and wherever the word ‘alimony’ is used in the statutes, it is used with that meaning, and when the word was used in the entries in this case, it was used in its usual sense, which is .not synonomous with that share of the husband’s property which may be adjudged to the erring wife under Section 11993. Such share of the husband’s property is not nourishment or maintenance, which implies a periodical payment for that purpose. A share of the husband’s property, is a payment in a lump sum, often intended to reimburse the wife for what she may have brought to the marriage, or what she may have contributed to the property acquired by the husband after the marriage.”