Ogden v. Hebert
| Decision Date | 28 December 1897 |
| Docket Number | 12,660 |
| Citation | 22 So. 919,49 La.Ann. 1714 |
| Court | Louisiana Supreme Court |
| Parties | CARLTON N. OGDEN, HUSBAND, v. LYNDA HEBERT, WIFE |
Submitted December 14, 1897
APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupre, J.
John N Ogden, for Plaintiff, Appellant.
The plaintiff appeals from the judgment dismissing his demand for a separation from bed and board from his wife.
The petition alleges "the dispositions of plaintiff and his wife to be not congenial;" that their living together is insupportable; that her ill treatment of plaintiff is partly manifested by her submission to the control of her relatives and that she thus ignores the marital deference and authority.
The testimony to support the demand is of the same general character as the petitioner's allegations, and the witnesses are the father and brother-in-law of the defendant and the parents of the plaintiff. The statements of the witnesses are in effect that the dispositions of the spouses are not congenial, and as a result their living together is insupportable; that the wife has ill treated the husband, and that this perpetual ill treatment has caused their separation, and all the witnesses announce they are satisfied the spouses can not live together. The service of the petition was accepted. No answer was filed. There seems to have been no cross-examination of the witnesses and there has been no appearance on behalf of the wife in this court.
If the causes for the separation are alleged and proved, the absence of any opposition by the defendant will not in the least affect the validity of the judgment. But as marriage can not be dissolved by consent, it is especially obligatory on courts in a case like this, when no defence is made, to exact proof of the causes for the separation. Mere want of congeniality of husband and wife is not among these cases specified in the Code to authorize the judgment of separation (Civil Code, Art. 138). Nor in our jurisprudence. The contract the Code declares is designed to endure till the death of one of the spouses, and the law supposes their mutual efforts will produce the harmony that should exist between man and wife. Hence in the causes for separation the prominent ground of the petition finds no place and can exert no influence unless it leads to the grievances for which the Code declares the contract of marriage may be dissolved (Code,...
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