6 Rob. 135 | La. | 1843
This is a suit for a divorce, grounded on the charge of adultery by the wife, alleged to have been committed on the 10th and 11th of February, 1842, with J, M. G. The plaintiff claims, at the same time, the custody of their child E., issue of the marriage.
The defendant denies the adultery, and claims, in reconvention, a divorce from the plaintiff, on the allegation of great and repeated and brutal outrages, for a series of years, which embittered her existence, and rendered her life insupportable. She further alleges, that she is entitled to a divorce, because the plaintiff had killed the said J. M. G., and thereby committed an infamous crime, and had fled from justice.
The cause was tried by a jury ; a verdict and judgment were rendered for the defendant, decreeing her a separation from bed and board, and the plaintiff has appealed.
It is shown, that the parties lived unhappily together; that the
If, under these circumstances, the defendant had brought a direct action for separation from bed and board groundéd upon alleged cruelty and outrage, previously to the month of November, 1841, the reconciliation which then took place, would have been an insuperable bar to her action, unless on proof of renewed ill treatment after the reconciliation. The provision of the code on this subject is explicit and formal. “ The action of separation shall be extinguished by the reconciliation of the parties, either after the facts which might have given ground to such action, or after the action has been commenced. In either case, the plaintiff shall be precluded from bringing his action ; but he shall be at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives, to corroborate his new action.” Civil Code, arts. 149, 150.
The defendant cannot, in our opinion, by asking either for a divorce, or a separation from bed and board, by way of reconvention, evade that provision of law; and, in order to succeed in such a demand, sufficient legal causes or a separation must be shown to have occurred since the reconciliation.
As to the charge of adultery, the evidence in the record has engaged our serious and attentive consideration. All the circum
But it has been urged upon us with great earnestness, that the plaintiff having afterwards killed G. and fled from justice, and gone beyond the jurisdiction of the State, was guilty of an infamous offence, and that the wife, for that cause, is entitled to a divorce. Bullard & Curry’s Digest, verbo Divorce.
We cannot give our sanction to such an application of the law. Having expressed our conviction, that the charge of adultery is made out — although it is shown, that the plaintiff took his revenge afterwards by slaying G. in cold blood, and in a manner both cruel and unmanly ; yet we are not prepared to say, that the wife, whose conduct had already entitled the husband to a divorce, may turn round and claim a divorce on her part, on account of the killing of the man, with whom the act had been committed. The Legislature never could have contemplated such a case.
For these reasons, we have come to the conclusion, that the judgment below is erroneous ; and it becomes our duty to reverse it.
It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, and the verdict set aside ; and it is further ordered and decreed, that the bonds of marriage heretofore existing between the plaintiff and M. E., his wife, be, and the same are, hereby, declared to be forever dissolved ; and it is further ordered, that the plaintiff be maintained in his rights to the custody of the child E., issue of the marriage, and that the defendant pay the costs of both courts.