137 So. 45 | La. | 1931
Defendant appeals from a judgment of separation of bed and board rendered against her. *312
In the court below defendant filed an exception of no cause of action, which does not appear to have been expressly passed upon. Defendant also filed a similar exception in this court. The grounds of the exception are, substantially, that the plaintiff does not allege he is free from fault or that he and his wife are living separate and apart, nor that the acts complained of were not condoned, and that no reconciliation has taken place between the parties.
The grounds of the exception are matters of defense rather than of exception; and, as a matter of fact, were pleaded by defendant in her answer as a bar to plaintiff's action.
On the merits, the court below found in favor of the plaintiff, and, after a careful reading of the testimony adduced on the trial of the case, we cannot say that he erred in his findings.
The plaintiff sets forth in his petition a number of specific acts of cruel treatment on the part of his wife towards him, which are sufficient, if established, to entitle him to a judgment of separation from bed and board under the plain provisions of the Civil Code (article 138 et seq.). Plaintiff testified as to these various acts, and his testimony, in many instances, is supported by the testimony of a number of other and disinterested witnesses. Defendant's denial of plaintiff's charges stands alone. The testimony does not show that the plaintiff was at fault, nor that he had condoned the acts complained of; and it does show that plaintiff and defendant were living separate and apart before and at the time the suit was filed.
For the reasons assigned, the judgment appealed from is affirmed. *313