Champon v. Champon

• Decision Date: 01 January 1888
• Docket Number: 9962
• Citation: 3 So. 397,40 La.Ann. 28
• Court: Louisiana Supreme Court
• Parties: MRS. C. E. CHAMPON v. C. E. CHAMPON, HER HUSBAND

3 So. 397

40 La.Ann. 28

MRS. C. E. CHAMPON v. C. E. CHAMPON, HER HUSBAND

No. 9962

Supreme Court of Louisiana

January 1, 1888

APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

Bayne Denegre & Bayne for Plaintiff and Appellee.

Semmes & Legendre and R. T. Beauregard for Defendant and Appellant.

TODD J. POCHE, J. concurs in the decree.

OPINION

TODD J.

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 his wife and came to this country and joined his concubine here, who together subsequently came to New Orleans, where they continued to reside.

Some time prior to 1874 the deserted wife came to the United States and lived in New York City, to the knowledge of her husband.

In February, 1874, Champon instituted a suit for divorce against his 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 him, 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 month, 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 board or an absolute divorce.

These rules are defined in the articles of the Code on the subject of divorce and separation from bed and board.

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...