40 La. Ann. 28 | La. | 1888
The opinion of the Court was delivered hy
This is a suit to annul a judgment of divorce obtained by the present defendant against the plaintiff, his wife.
The judgment attacked was rendered by a district court of the parish of Orleans, in this State, on the 16th of March, 1874.
Among the grounds of nullity urged against the judgment assailed, is the want of citation, i. e. that the judgment in question was rendered without citation to the wife, the defendant therein.'
The facts are these: The parties were married in France in 1852. In 1855 Champon, the husband, abandoned bis wife and came to this country and joined his concubine here, who together subsequently came to New Orleans, where they continued to reside.
In February, 1874, Champon instituted a suit foi divorce against Ms wife, on the ground of excesses, ill-treatment and abandonment. In his petition he alleged that his wife was absent from the State and resided in some part of the United States unknown to Mm, and he prayed and obtained the appointment of a curator ad hoc to represent her.
This appointment was made on the 3d of March, 1874, and upon the same day citation was issued and served (quoting) “upon Mrs. E. Champon, wife of C. E. Champon, through A. Brieugne, Esq., appointed attorney ad. hoc.”
Upon the 5th of March the curator filed an answer, substantially a general denial.
The case was submitted on the 11th of March; on the 16th, same mouth, judgment granting the divorce was rendered, and was signed on the 20th.
There were no proceedings had in the case such as summonses and orders to return and notifications directed to the wife, to establish abandonment as prescribed by the Code. In point of fact, she was entirely ignorant of the proceedings and remained in ignorance of them until a copy of the judgment was forwarded to her in New York.
We have no hesitation in concluding, under this state of facts, that the judgment was an absolute nullity.
The only provision in our law for the appointment of a curator ad hoc to defend an absentee is in Arts. 56 of the C. C. and 116 C. P. and R. S. 1198.
These articles were for a long time the subject of conflicting decisions, but finally it was settled that the articles in question presuppose something upon which the jurisdiction of the court can properly rest. Such, for instance, as the party sued having property in the State, or being a necessary party to some judicial proceeding, or contract, or convention sought to be annulled. 2 Ann. 562; 3 Ann. 101.
Marriage under our law is a civil contract. A decree of divorce, dissolving the marriage rests on the same principle on which all contracts may be dissolved, i. e. by reason of an active or passive violation of the obligation of the contract by either party thereto. But with regard to the contract of marriage particular rules are prescribed and mode of proceeding established, by or through which the parties to such contracts aggrieved may enforce their rights, either by a separation from bed and b oard or an absolute divorce.
it was held in the case of Prindle vs. Williams, 9 Ann. 34, that there were only two cases in which a curator could be appointed to absent wives in suits instituted by their husbands for divorce or separation from bed and board; one where the defendant is charged with the commission of an infamous crime and being a fugitive from justice, or a separation is claimed on the ground of abandonment. Muller vs. Helton, 13 Ann. 1.
This divorce proceeding that we are reviewing does not fall within • either of the conditions named where such an appointment could be made.
It is true that among the charges enumerated in the petition for divorce, is that of abandonment; but it is manifest from an examination of the record in that case that the judgment was in no way founded on that cause,-or that abandonment formed any factor whatever in the entire proceeding. Abandonment in the first place is no legal cause or ground of divorce. In the next place, to make it effective, even as a cause of separation from bed and board, it must be established by the mode prescribed by the Code ; that is, by the summonses and interlocutory orders directed by the Code; Art. 1451; Perkins vs. Potts, 8 Ann. 14; Bienvenu vs. Buisson, 14 Ann. 387; Merrill vs. Flint, 28 Ann. 195.
In the entire proceedings in this case we find nothing of the kind, so that the divorce was undoubtedly granted on account of the cruelty and excesses charged.
Besides, the pretense of abandonment by the wife was predicated upon a dictum of the law that had not the slightest bearing on the facts of the case. That dictum is that the domicile of the husband is or becomes the domicile of the wife. The only matrimonial domicile the parties ever had was in France, where they lived together for a time after their marriage. This domicile the husband abandoned, and is next found in this country dwelling with his concubine, and hiding from his lawful spouse, who is in utter ignorance of his whereabouts.
It would do violence to the plainest principle of common sense and common justice to call this residence of the guilty husband, where the wife is forbidden to come, or- of which she knows nothing, the domicile of the wife. ■ •
The true meaning of.-this aphorism, touching the domicile of the wife being that of her husband, is that the domicile of the wife is the
The divorce suit in question was in fact a fraud on the very law invoked to justify its institution and to support the judgment which follows it.
Concluding, therefore, that the wife was never cited and that the judgment was, in law, rendered without citation, of course, it was an absolute nullity and the marriage with legal effects remained intact, unimpaired and unaffected by the vain proceeding directed against it. The judgment dissolving it being thus void on the very face of the proceeding, could not, of course, be protected by prescription, which is pleaded against the action to annul it.
Judgment affirmed.
