105 So. 6 | La. | 1925
Lead Opinion
This is an appeal by plaintiff from a judgment rejecting her demand for a separation from bed and board, and sustaining that of the husband, made in reconvention.
The demands of the respective parties are based upon charges of mutual excesses, cruel treatment, and outrages — the plaintiff specifically averring that she had been assaulted,' insulted, and abused by. the defendant on several stated occasions; and the defendant, reconvening, has covertly attacked the chastity of his wife under charges of flirtations, “joy rides,” etc., but, realizing the insufficiency of such charges to establish adultery, has placed them in the broad category of “cruel treatment.”
We agree with the trial judge that, plaintiff’s demand was properly rejected, as the evidence is not sufficient to sustain same. We have also reached the conclusion, after a review of the testimony in the case, that defendant’s reconventionai demand should have been likewise rejected, as several of the witnesses of defendant admitted on the stand prejudice and ill feeling against plaintiff; some made statements unusual and incredible upon their face, while others were flatly contradicted by plaintiff and her witnesses in rebuttal.
The dissolution of the bonds of matrimony is no trivial matter at any time. This court will not place the stigma of unchastity upon a wife, the mother of innocent children, in any case, upon bare’ suspicion of guilt, but will require clear and convincing proof in all cases of this character. Some women, who are not really guilty of wrongdoing, act imprudently at times, and subject themselves unnecessarily to criticism and censure.
2. The mere fact that plaintiff and appellant has failed to make an appearance in this court, or to file an assignment of errors, or a brief, does not debar us from reviewing the evidence in the record. A wife, without the meanb of retaining counsel, as in the present case, is entitled at least to this act
The judgment appealed from is therefore amended by rejecting the reconventional demand of defendant for separation from bed and board, and, as amended, is affirmed; appellee to pay costs of both courts.
Lead Opinion
This is an appeal by plaintiff from a judgment rejecting her demand for a separation from bed and board, and sustaining *900 that of the husband, made in reconvention.
The demands of the respective parties are based upon charges of mutual excesses, cruel treatment, and outrages — the plaintiff specifically averring that she had been assaulted, insulted, and abused by the defendant on several stated occasions; and the defendant, reconvening, has covertly attacked the chastity of his wife under charges of flirtations, "joy rides," etc., but, realizing the insufficiency of such charges to establish adultery, has placed them in the broad category of "cruel treatment."
We agree with the trial judge that plaintiff's demand was properly rejected, as the evidence is not sufficient to sustain same. We have also reached the conclusion, after a review of the testimony in the case, that defendant's reconventional demand should have been likewise rejected, as several of the witnesses of defendant admitted on the stand prejudice and ill feeling against plaintiff; some made statements unusual and incredible upon their face, while others were flatly contradicted by plaintiff and her witnesses in rebuttal.
The dissolution of the bonds of matrimony is no trivial matter at any time. This court will not place the stigma of unchastity upon a wife, the mother of innocent children, in any case, upon bare suspicion of guilt, but will require clear and convincing proof in all cases of this character. Some women, who are not really guilty of wrongdoing, act imprudently at times, and subject themselves unnecessarily to criticism and censure.
2. The mere fact that plaintiff and appellant has failed to make an appearance in this court, or to file an assignment of errors, or a brief, does not debar us from reviewing the evidence in the record. A wife, without the means of retaining counsel, as in the present case, is entitled at least to this act *901
of justice on the part of the court. We have examined the facts in other cases, where the appellant made no other appearance than by filing the transcript in the Supreme Court, in spite of the presumption of the abandonment of the appeal, and the correctness of the judgment of the lower court. Bryceland Lumber Co. v. Korlin et al.,
The judgment appealed from is therefore amended by rejecting the reconventional demand of defendant for separation from bed and board, and, as amended, is affirmed; appellee to pay costs of both courts.
O'NIELL, C.J., absent.
ROGERS, J., dissents, being of the opinion that the judgment appealed from should be affirmed.
Dissenting Opinion
dissents, being of the opinion that the judgment appealed from should be affirmed.
