81 So. 378 | La. | 1918
Lead Opinion
On Motion to Dismiss the Appeal.
The defendant was granted an appeal from a judgment of divorce, on her furnishing bond for $100. She and R. J. Derbes signed one of the printed forms used for appeal bonds, and filed it in the record without having inserted, in the blank spaces left for the purpose, the name of the surety, the amount of the obligation, the date of the bond, or the date of the judgment appealed from. Except that the name R. J. Derbes is written below that of the principal, where a surety should sign, there is no indication in the bond itself of the capacity in which he signed the instrument. Annexed to the bond, however, is the oath of the surety and the oath of the appellant that he, R. J. Derbes, the surety on the bond, is worth, over and above all his debts and obligations, in assets that can be subjected to levy under execution, more than $100, the amount for which he bound himself. The oaths are dated and conform with the requirements of section 4 of Act No. 112 of 1916, p. 242.
The appellee filed in this court a motion to dismiss the appeal for want of a valid appeal bond. The appellant then filed a motion, .alleging that, pursuant to section 3 of Act No. 112 of 1916, she had filed a new appeal bond in the district court within two legal days after service of the motion to dismiss her appeal. She prayed for an order on the clerk of the district court to complete the record by sending up a copy of the new bond. The order was granted, and, in response, the clerk of the district court has furnished a copy of the new appeal bond. It is in due form, is for $100 and is signed by R. J. Derbes as surety.
We observe that section 3 of the statute referred to provides that a litigant desiring to furnish a supplemental or an additional bond shall have the right to do so at any time prior to judgment; hence the inference that no right is given to furnish a supplemental or an additional bond after judgment. But, with regard to appeal bonds, that provision of the law cannot apply to the judgment appealed from.
The methods adopted in this case, for correcting the defects in the first appeal bond or furnishing a new bond, were not in accord with the provisions of Act No. 112 of 1916. The" appellee should have urged his complaint in the district court, should have had it served upon the appellant, and should have given the latter the opportunity to correct the errors or furnish a new bond within two legal days after service of the complaint. Under the circumstances, and by the terms of section 9 of Act No. 112 of 1916, the appeal cannot be dismissed on account of the errors or omissions complained of in the motion to dismiss.
The motion to dismiss the appeal is overruled.
Opinion on the Merits
On the Merits.
This is an appeal by the defendant wife from a judgment in favor of the plaintiff husband, based upon the provisions of Act No. 269 of 1916.
The fact that plaintiff and defendant had - not lived together for more than 12 years is not disputed. However, it is the contention of defendant that one spouse should not be permitted to desert the other, and otherwise violate the marriage obligations and then be allowed to use his or her own wrong as the basis of divorce.
It is further urged that the act in question violates article 2 of the Bill of Rights and article 166 of the state Constitution, as well as section 10 of article 1 and section 4 of the Fourteenth Amendment to the federal Constitution.
Cause of Separation.
The record is practically silent on the question of what caused the separation and we cannot assume that the fault was that of the one any more than of the other. It will be time enough for us to determine, when a proper case is presented, whether we shall apply to suits brought under this act the equitable doctrine announced in the cases based upon the other grounds of divorce provided in the Code; i. e., that when the spouses are guilty of mutual outrages toward each other, the courts will not grant relief from the effects of their own wrongs.
We will now consider the constitutional questions in the order above mentioned.
“By the law of the land [the equivalent of due process of law] is * * * clearly intended the general law; * * * which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” It means “that every citizen shall hold his life, liberty, property * * * under the protection of the general rules which govern society.” Words and Phrases, vol. 3, p. 2232; In re Ross, 38 La. Ann. 533.
The statute in question applies to all persons of the same class alike, gives ample opportunity to be heard, and does not, in our opinion, violate the provision of the state Constitution referred to.
Does the Act Violate Article 166 of the State, or Section 10, Article 1, of the Federal, Constitution?
Does the Act Divest Vested Rights, or Impair the Obligations of Contracts?
The pertinent articles under the chapter of the Code dealing with marriage provide:
Art. 86. “The law considers marriage in no other view than as a civil contract.”
Art. 87. “The laws prescribe:
“1. The manner of contracting and celebrating marriages;
“2. The legal effects and consequences of marriage ;
“3. The manner in which marriage may be dissolved.”
Art. 88. “Such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes.”
Art. 89. “Marriage is a contract intended in its origin to endure until death of one of the contracting parties; yet this contract may be dissolved before the death of either of the married persons, for causes determined by law.”
Art. 90. “As the law considers marriage in no other view than that of a civil contract, it sanctions all those marriages where the parties, at the time of making them, were:
“1. Willing to contract;
“2. Able to contract;
“3. Did contract pursuant to the forms and solemnities prescribed by law.”
Subsequent articles impose upon the spouses mutual rights and duties.
It may be said that article 86 declares marriage to be a civil contract, the obligations of which cannot be violated by any law passed subsequently to its celebration. How
“It is also to be observed that, whilst marriage is often termed by text-writers and in decisions of courts a civil contract — generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization — it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created' which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society.” Maynard v. Hill, 125 U. S. 210, 8 Sup. Ct. 729, 31 L. Ed. 654.
Further on, in the sanie case, the Supreme Court of the United States quotes approvingly from the case of Adams v. Palmer, 51 Me. 484, 485, as follows:
“It is not then a contract within the meaning of the clause of the Constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds — but are the creation of the law itself; a relation the most important as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”
We quote from Ruling Case Law, vol. 18, p. 386, subject, Marriage, as follows:
“Marriage is not a contract within the meaning of the prohibition of the federal Constitution against the impairments of contracts by legislation.”
See, also, vol. 6, p. 344 (Const. Law); note to 84 Am. St. Rep. 449.
We have quoted and cited the above authorities for the purpose of showing that marriage is not a contract in the sense that laws affecting the relation are amenable to the provisions of the state and federal Constitutions against impairing obligations of contracts, or the divesting of vested rights, in so far as the duties and obligations of the spouses toward each other are concerned. But, even if this were not the law, the duty to support the wife, even after the dissolution of the marriage, under proper conditions, is still preserved in our law, notwithstanding the act of 1916. As we understand the contention of defendant, it is that the law otherwise imposes upon the husband the duty of supporting the wife, and to dissolve the marriage under the act of 1916 without preserving that right robs her of a substantial benefit given under the contract itself. However, article 160, C. C., provides:
“If the wife who has obtained the divorce has not sufficient means for her maintenance, the*887 court may allow tor in its discretion, ont of the property of her husband, alimony which shall not exceed one-third of his income.
“This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage.”
The only condition imposed by this provision of the Code seems to be that the wife, herself, shall obtain the divorce, and it has been held that she may recover such alimony, even though a defendant, where she obtains the decree by reconvention. Landreaux v. Landreaux, 114 La. 528, 38 South. 442. Being one of the incidents of the settlement of the matrimonial community, it may also be recovered after the decree of separation has been pronounced. Suberville v. Adams, 46 La. Ann. 124, 14 South. 518. We, of course, express no opinion as to what the rights of the defendant in the case before us would be in event, after the finality of the judgment in this case, she should sue for alimony. She has not asked it herein, and, of course, it cannot be considered. We think the act of 1916 leaves the right to a settlement and division of community property and to claim alimony unimpaired as provided in the Code, whatever may be our ultimate conclusions on the right of a wife to claim alimony in a case like the one at bar, where the husband has obtained the divorce upon the provisions of the act, and when the wife is1, herself, in no wise at fault.
Fourteenth Amendment to United States Constitution.
What we have said above in regard to the provisions of article 2 of Bill of Rights of the state Constitution guaranteeing “due process of law” is equally applicable under the similar provisions of the Fourteenth Amendment to the federal Constitution.
For the reasons assigned, the judgment appealed from is affirmed at the cost of appellant.