Kuhlman v. Kuhlman
| Decision Date | 10 May 1915 |
| Docket Number | 20197 |
| Citation | 137 La. 263,68 So. 604 |
| Court | Louisiana Supreme Court |
| Parties | KUHLMAN v. KUHLMAN |
(Syllabus by the Court.)
An action brought by the father under article 191 of the Civil Code, to contest the legitimacy of a child of the wife, was properly instituted in the parish of the domicile of the father.
Where a similar action had been previously brought by the father in another parish, where the wife and child were sojourning, and had been dismissed on an exception to the jurisdiction of the court, and the father did not appeal from the judgment held, that the prescription, or bar, of two months provided by article 191 of the Civil Code against such actions, commenced to run from the date when the judgment became executory.
Lyle Saxon, of New Orleans, for appellant.
Lindsay McDougall, of Franklinton, Atty. ad hoc, for appellee.
This is a suit in which the plaintiff contests the legitimacy of the defendant minor, born to plaintiff's wife during their marriage. Article 191 of the Civil Code requires that such an action of disavowal or repudiation be brought by the father within 1 month, if he be in the place where the child is born, or within 2 months after his return, if he be absent at the time, or within 2 months after the discovery of the fraud if the birth of the child was concealed from him, 'or he shall be barred from making an objection to the legitimacy of said child.'
Plaintiff did bring such an action in the civil district court for the parish of Orleans within 60 days after the birth of the child, but the action was dismissed on an exception to the jurisdiction of the court, which held that the action should have been brought in the parish of Washington, where the plaintiff was domiciled at the time of the birth of the child, and where he was domiciled at the time of the institution of the suit.
The plaintiff did not appeal, but some 6 months later brought the present suit in the parish of Washington, thereby acquiescing in said judgment of dismissal for want of jurisdiction.
The curator ad hoc appointed by the court to represent the defendant minor, excepted to the jurisdiction of the district court for the parish of Washington, and, in the alternative, pleaded the prescriptive bar of 60 days, under C. C. art. 191.
The judge a quo sustained both pleas.
We are of opinion that the district court for the parish of Washington has jurisdiction, as held by the civil district court for the parish of Orleans, for the conclusive reason that the domicile of the father is the domicile of the child of the marriage. The curator ad hoc in his brief abandons the exception to the jurisdiction of the court below.
The question of the prescription, or bar, of two months, requires a more extended consideration.
In Succession of Saloy, 44 La.Ann. 441, 10 So. 875, the court said:
'This action is limited to a delay fatal and very short, after which it is extinguished by the renunciation, express or tacit, which is made by the husband or his...
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