Evans v. Evans

• Citation: 166 La. 145,116 So. 831
• Decision Date: 09 April 1928
• Docket Number: 27138
• Court: Supreme Court of Louisiana
• Parties: EVANS v. EVANS

116 So. 831

166 La. 145

EVANS v. EVANS

No. 27138

Supreme Court of Louisiana

April 9, 1928

Appeal from Fifth Judicial District Court, Parish of Richland; John R. McIntosh, Judge.

Suit by Walter C. Evans against Ida T. Evans for separation from bed and board. From an adverse judgment, plaintiff appeals.

Affirmed.

George Wesley Smith, of Rayville, for appellant.

Ellis &amp Ellis, of Rayville, for appellee.

O'NIELL C. J. ST. PAUL, J., dissents.

OPINION

O'NIELL, C. J.

The plaintiff has appealed from a judgment dismissing his suit on an exception to the jurisdiction of the court. The suit is for a judgment of separation from bed and board on the ground of abandonment. The plaintiff alleges that he is a resident of Richland parish, in this state; that he was married to the defendant in Meridian, Miss., on the 28th of April, 1901 that she abandoned the matrimonial domicile without good cause and refuses to return thereto, or to live with him; and that she is living in Meridian, Miss., at 2721 Seventh street. He prayed for and obtained the appointment of a curator ad hoc, on whom were served the citation and a copy of the petition, and the three demands on the defendant to return to the matrimonial domicile, which demands were served one month apart, as required by article 145 of the Civil Code. These demands to return to the matrimonial domicile, addressed to the defendant and served upon the curator ad hoc, did not indicate where the so-called matrimonial domicile was, but declared merely that, whereas, the plaintiff had alleged in his petition that his wife had withdrawn from the matrimonial domicile without just cause, therefore she was commanded to return to her "said matrimonial domicile without delay," or show cause why she neglected or refused so to do. The curator ad hoc did not file any plea or make an appearance in the case, except to qualify by taking the oath prescribed by law. It appears that he died soon after the third demand upon the defendant to return to the matrimonial domicile was served upon him. Thereafter the defendant employed a firm of lawyers, and they filed an exception to the jurisdiction of the court, averring that the defendant had never resided in Louisiana, and in fact had never been in this state. The plea to the jurisdiction was submitted on the pleadings, and on an admission that the plaintiff and defendant had never lived together in Louisiana, and in fact that the defendant had never been in Louisiana.

Inasmuch as it is neither alleged nor proved that the plaintiff was domiciled in Louisiana when he married the defendant in Meridian, Miss., we assume that he came to Louisiana and acquired a domicile here after the defendant had abandoned the matrimonial domicile in Meridian, Miss., if in fact she did abandon the matrimonial domicile, as alleged in the plaintiff's petition.

The case was submitted on appeal without argument or brief for either the appellant or appellee.

It is well settled that the courts of Louisiana will not entertain a suit for divorce, or for separation from bed and board, for a cause which arose elsewhere and before the parties were domiciled in this state. Neal v. Her Husband, 1 La.Ann. 315; Edwards v. Green, 9 La.Ann. 317; Muller v. Hilton, 13 La.Ann. 1, 71 Am. Dec. 504; Bonella v. Maduel, 26 La.Ann. 112; Champon v. Champon, 40 La.Ann. 28, 3 So. 397; Heath v. Heath, 42 La.Ann. 437, 7 So. 540; Nicholas v. Maddox, 52 La.Ann. 1493, 27 So. 966; Blake v. Dudley, 111 La. 1096, 36 So. 203; Clark v. Clark, 145 La. 740, 82 So. 875; Mathews v. Mathews, 157 La. 930, 103 So. 267.

No court has jurisdiction to render a judgment which will be binding upon the defendant personally, without service of citation on the defendant within the territorial jurisdiction of the court, except a court in whose jurisdiction the defendant has his or her domicile. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 N.Y. Anno. Cas. 1.

The rulings in the following cases were not contrary to the doctrine which we have announced, viz.: Larquie v. His Wife, 40 La.Ann. 457, 4 So. 335; Butler v. Washington, 45 La.Ann. 279, 12 So. 356, 19 L.R.A. 814; Stevens v. Allen, 139 La. 658, 71 So. 936, L. R. A. 1916E, 1115; George v. George, 143 La. 1032, 79 So. 832; Lepenser v. Griffin, 146 La. 584, 83 So. 839; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794.

In Larquie v. His Wife, the plaintiff, having his domicile in Louisiana, married the defendant in France, and he and she thereafter lived together in New Orleans and established their matrimonial domicile here. Hence it was held that the court in New Orleans had jurisdiction to render a judgment of separation from bed and board against the wife, who, while sojourning in France, abandoned her husband, then in New Orleans, and refused to return to the matrimonial domicile in New Orleans.

In Butler v. Washington, the wife sued for and obtained a judgment of separation from bed and board, at the matrimonial domicile, in the parish of Ascension, Louisiana; and, after two years, she averred in a supplemental petition that there had been no reconciliation between her and her husband, and she prayed for an absolute divorce. Meantime the husband had left the state permanently; and, on proper allegation to that effect, a curator ad hoc was appointed to represent him, and the citation and a copy of the supplemental petition were served upon the curator ad hoc. On due proof that there had been no reconciliation between the husband and wife, she was granted a divorce. The husband afterwards sued to have the judgment of divorce declared a nullity, for want of citation and for want of jurisdiction ratione personae. The court decided that the judgment of divorce was valid, because according to articles 138 and 139 of the Civil Code, the suit for divorce was merely a continuation of the suit for separation from bed and board, in which suit the court that rendered the judgment had jurisdiction and the defendant was duly cited.

In Stevens v. Allen the plaintiff, husband, was domiciled in New Orleans before and at the time when, being an army officer and serving temporarily at an army post in Virginia, he married the defendant in Brooklyn, N. Y., and she abandoned him there. On his return to his domicile in New Orleans, he sued here for a separation from bed and board on the ground of abandonment, because of the wife's refusal to come and live with him here. The ruling on the question of jurisdiction was that the court in New Orleans had jurisdiction because the husband and wife had never established a matrimonial domicile elsewhere, and because the defendant, by marrying one whom she knew to be domiciled in New Orleans, made that place her domicile, and when he returned to his domicile it became the matrimonial domicile, to which the wife was obliged to come in obedience to his summons.

The case of George v. George was a suit for a divorce by the wife, and was brought in New Orleans, where the husband had his domicile. He pleaded -- without avail, of course -- that the suit should have been brought in Chicago, where the marriage took place, and where the matrimonial domicile was established originally.

Lepenser v. Griffin was a suit by the wife for a divorce on the ground that she and her husband had been living separate and apart for a period of 12 years, continuously, during which period she had resided continuously in New Orleans. The suit was founded upon the Act 269 of 1916, p. 557, declaring that any married person is entitled to obtain an absolute divorce in the state of his or her residence, on proof of having lived separate and apart from the other spouse continuously for seven years, provided such residence...