Lead Opinion
Plаintiff sued defendant, her husband, for separation on the ground of cruel treatment. Defendant reconvened, demanding a separation for abandonment. The court below rejected plaintiff’s demand, and gave defеndant judgment in reconvention, ordering that plaintiff be summoned in the manner provided by law to return to the matrimonial dоmicile, and awarding defendant custody of the children pending further proceedings. Plaintiff appealed.
Plаintiff alleged that her husband.refused to provide proper food and clothing for her and -their two small children; thаt he often cursed and whipped her, particularly on the morning of May 13, 1928, when he drove her away from home.
.Dеfendant denied the cruel treatment alleged, and averred that without any just cause his wife left home during his absence, taking the children with her, her act amounting in fact and in law to abandonment.
The trial judge reached the conclusion that plaintiff failed to establish the allegations of her petition, and after reading the testimony adduсed on the trial of the case, we have reached the same conclusion.
*841 In this court plaintiff has filed аn exception of no right or cause of action to defendant’s reeonventional demand.
Peremрtory exceptions founded on law may he pleaded in the Supreme Court. Code Prac. art. 902; Lassus v. Clarke,
Dеfendant prayed in his reeonventional demand that plaintiff be summoned to return to the matrimonial domicile, but nо preliminary order to that effect was granted by the court, and no summons was issued under defendant’s prayer.
The sеttled Jurisprudence is that a re-conventional demand on the part of defendant for a separation on the ground of abandonment is not allowable. A demand for separation on that ground must be brought by direct aсtion in the manner prescribed by Civ. Code, arts. 143 and 145, and cannot be brought in any other form. Bienvenu v. Her Husband,
Act No. 271 of 1928, аmending article 145 of the Civil Code, is not applicable, where separation is demanded in reconventiоn. The proof of abandonment by reiterated notices is dispensed with only where the defendant in a suit for separation has filed an answer to the main demand for separation. Spiller v. Spiller, supra.
Defendant cоntends that plaintiff’s exception is not well founded, because the Judgment on his reeonventional demand is not оne of separation, but only 6ne ordering that notices to return to the matrimonial domicile be issued to plаintiff. Defendant argues that the judgment in that respect is more in the nature of an interlocutory decree than a final judgment, from which plaintiff is not entitled to an appeal.
Whether the judgment be interlocutory or final is unimportаnt. It was not within the power of the court below to render any other judgment than one of dismissal on defendant’s reеonventional demand.
For the reasons assigned, the judgment is affirmed on the main demand, and annulled on the reeonventional demand; and it is now ordered that defendant’s reeonventional demand be dismissed, reserving defendant’s right tо assert in a direct action in the manner provided by law the cause of action set forth in his reeonventional demand.
Dissenting Opinion
(dissenting).
My opinion is that the judgment of the district court, ordering that the wife be summoned to return to the matrimonial dоmicile, in response to the defendant’s reconvéntionai demand, is correct, and should be affirmed. The deсisions cited in the prevailing opinion in this case are not good authority for the ruling that a reeonventionаl demand for a decree of separation on the ground of abandonment cannot be allowed in а suit for divorce. Such a demand in reconvention' is allowable if the defendant, as plaintiff in re-convention, рrays for the proper summons on
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the abandoning party to return to tbe matrimonial domicile. Bienvenu v. Her Husband,
“In.the Bienvenu Case defendant was evidently seeking to obtain a separation from bed and board on the ground of abandonmеnt of the wife 6y direct proof of the abandonment, administered, on the trial without having had recourse to the vаrious swnvmons and orders to return prescribed by the Code." (The italics are mine.)
In the Ashton Case, the ruling on the defendant’s reconventional demand was that the court coifld not give effect to the three summonses which had been served upon the рlaintiff to return to the matrimonial domicile during the pendency of his suit for a separation from bed and board.
Mоnteleone v. O’Hanlon, cited in the prevailing opinion in this case, was not a suit for divorce or for sepаration from bed and board, but a suit to annul the marriage.
In Spiller v. Spiller, also cited in the prevailing opinion, the defendant did not pray, in her reconventional demand, that the plaintiff should be summoned to return to the matrimonial domicile. She merely alleged that her husband had abandoned her and had circulated scandalous and defamatory stories about her; and for that she merely prayed for a decree of separation frоm bed and board, and for alimony. I have examined the original record of the case in the archives of the court.