Gastauer v. Gastauer

• Decision Date: 20 May 1912
• Docket Number: 18,876
• Citation: 58 So. 1012,131 La. 1
• Court: Louisiana Supreme Court
• Parties: GASTAUER v. GASTAUER et al

58 So. 1012

131 La. 1

GASTAUER v. GASTAUER et al

No. 18,876

Supreme Court of Louisiana

May 20, 1912

Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.

Action by Sophie Gastauer against George Gastauer and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

George J. Untereiner, for appellant.

Woodville & Woodville, for appellee Geo. Gastauer.

Carroll Henderson & Carroll, for appellee Union Homestead Ass'n.

OPINION

MONROE J.

Statement of the Case.

Plaintiff sues her husband for a separation of property, alleging, in substance, that she owns four lots of ground (which are described) acquired in her name with paraphernal funds, and which she transferred to the Union Homestead Association to secure a loan of $ 2,000 in connection with which she subscribed for 20 shares of the stock of the association; that her husband borrowed $ 1,000, and attempted to secure the same by a mortgage on the same property, and notified said association that he would repay the loan made to petitioner, less the amounts paid on her stock, and would then require a transfer of the property to himself, and that petitioner is informed that said association, unless restrained, will comply with his request, to her great injury; that, in addition to said property, petitioner has a profession, from which she derives an income, and that her husband is habitually intemperate, a spendthrift, who has squandered her money, whilst failing to provide for her or their children, but requiring to be supported; that he is heavily in debt, and that her paraphernalia is in danger. Wherefore she prays that the Homestead Association be enjoined from transferring said property or interfering with her control of said stock, and that she have judgment against her husband of separation of property, and decreeing her to be the owner of said lots and stock. Defendant admits that plaintiff is his wife, and that she has acquired a profession, but he denies the truth of the other allegations of her petition, and prays that the lots referred to be decreed to belong to the community.

The Homestead Association answers, in effect, that it entered into the contract mentioned with both litigants, and has no interest in the matter here litigated save to be protected.

The evidence shows that the litigants were married a number of years ago; that the wife brought nothing in marriage; that the husband was for quite a long time in the business of draying or hauling, and apparently did well; that he afterwards engaged in the retail grocery business, and so continued for about six years, when his place was sold by the sheriff; and that he was then employed as bridge keeper on the new canal. We deduce from the testimony that during the latter period, or probably whilst he was keeping the grocery store, he fell into the habit of drinking rather freely and out of the habit of saving his money, which gave rise to dissension between himself and his wife, and the latter adopted the profession of midwife, and thereafter assumed, in part, if not wholly, the burden of supporting the family, the defendant having abandoned the matrimonial domicile some five months prior to the institution of this suit. In May, 1901, when the premises occupied as a grocery were sold, there was a balance left of $ 519, which defendant turned over to plaintiff, and in June following the lots here in question were purchased in the name of the plaintiff (together with other lots which have since been disposed of), the price being $ 1,600, and the terms $ 600 cash, and the balance, represented by two notes of $ 500 each, payable in one and two years. Of the $ 600 cash, $ 200 were paid by plaintiff's check, and the remaining $ 400 were paid by defendant's check. In November, 1901, defendant appears to have made an application to the Union Homestead Association for a loan on the property which had been acquired, as above stated, but later, finding, no doubt, that the title stood in the name of the wife, the association rescinded a resolution which it had adopted, approving the application of the husband, and in January, 1902, another application, signed by both wife and husband, was approved, and in connection therewith the wife became a subscriber for 20 shares of the stock of the association. The property was then transferred to the association. A portion of it was sold, and the remaining lots (being those which are here in dispute) were improved, and, as improved, the association is ready to transfer them back to either plaintiff or defendant or both,

as the court may decide, upon payment of the balance admitted to be due. The amount borrowed from the association was $ 2,000, which amount, on December 13, 1910, as we understand, had been reduced (by applying to the payment thereof the proceeds of the lots sold and other credits, including the installments paid on the stock subscription) to $ 517.93; and, as the brief of the counsel for the association informs us, has been still farther reduced since that time.

The husband and wife were permitted to testify at length upon the trial of the case, but the testimony of three of the children -- persons, apparently, of ...