Peeples v. Land

• Decision Date: 04 March 1935
• Docket Number: 33224
• Court: Louisiana Supreme Court
• Parties: PEEPLES v. LAND

160 So. 631

181 La. 925

PEEPLES v. LAND

No. 33224

Supreme Court of Louisiana

March 4, 1935

Rehearing Denied April 1, 1935

Writs of mandamus and prohibition issued, and suit dismissed.

Edward M. Heath, of New Orleans, for applicant.

Stirling Parkerson, of New Orleans, for respondent.

BRUNOT Justice. ODOM, Justice. O'NIELL, C. J., LAND, J. recused.

OPINION

BRUNOT, Justice.

The plaintiff filed suit in the civil district court for the parish of Orleans for a separation from bed and board. It is alleged in her petition that the plaintiff is a resident of Atlanta, Ga.; that she was married to the defendant in that city and state; that the matrimonial domicile was and is in that city and state; that the defendant abandoned her in that city and state; and, since said abandonment, the defendant removed to and has established a residence in the city of New Orleans, La. The pertinent part of the prayer of her petition is for a decree ordering the defendant to return to "No. 5 Collier Road, Apartment 3, in Fulton County, on the outskirts of the City of Atlanta, Georgia, the matrimonial domicile."

The defendant excepted to the jurisdiction of the court ratione personae and ratione materiae. These exceptions were overruled. With full reservation of his rights under his exceptions to the jurisdiction of the court, the defendant filed exceptions of no right and no cause of action. These exceptions were also overruled. Some time thereafter, upon the application of the plaintiff, the court issued a rule upon the defendant to show cause why he should not be condemned to pay the plaintiff alimony pendente lite, at the rate of $ 150 per month from June 1, 1933, the date the suit was filed. The rule was heard and a judgment was rendered thereon awarding the plaintiff alimony at the rate of $ 100 per month from April 10, 1934, the date the rule for alimony was served upon the defendant. The defendant suspensively appealed from the judgment. The plaintiff answered the appeal and prayed for an amendment of the judgment so as to include an award of alimony for the months from June 1, 1933, to April 10, 1934, at the rate of $ 150 per month, for said months. The case was heard on appeal, but pending the decision thereof, the defendant applied to this court for writs of certiorari, mandamus, and prohibition. A writ of certiorari, coupled with a stay order issued, and, in response thereto, the record has been sent up; returns have been filed by the respondents, and the case has been submitted, on the briefs of counsel, for our consideration.

The latest expressions of this court, on the jurisdictional question the relator's application presents, in suits such as the one under review, will be found in the following cases: Mathews v. Mathews, 157 La. 930, 103 So. 267; Evans v. Evans, 166 La. 145, 116 So. 831, 832; Mann v. Mann, 170 La. 958, 129 So. 543.

In the Mathews Case this court reviewed all of the cases on the subject-matter with which it had knowledge, and said: "We think it is the uniform and consistent jurisprudence of this state that, where both spouses were nonresidents of Louisiana, and the marriage was not contracted in this state, and the cause of action arose prior to the acquisition of a Louisiana domicile by either, the courts of this state will not entertain suits, instituted by either spouse, for separation from bed and board or for divorce."

In the Evans Case the Chief Justice was the organ of the court. The facts of that case were that the marriage was celebrated in Mississippi, the matrimonial domicile was in that state, and the wife abandoned her husband in that state. The husband became a resident of Louisiana, and sued his wife for a separation from bed and board in the court of his domicile in this state. There was an admission in the record that the spouses had never lived together in this state, and the wife had never been in Louisiana. These are the exact facts in the case before us. In the Evans Case the court said: "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 &] Cabellero v. Maduel, 26 La.Ann. [112] 113; Champon v. Champon, 40 La.Ann. [28] 30, 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.

In the Mann Case this court said, quoting from the syllabus, the following: "Husband cannot maintain suit in state for divorce or separation where marriage took place in another state, cause did not originate in state, and wife never resided with husband in state or became resident of state."

The learned trial judge, in his return to the writ, relies upon the cases of George v. George, 143 La. 1032, 79 So 832, and Clark v. Clark, 145 La. 740, 82 So. 875. In the opinion handed down by the Chief Justice in the Evans Case, the George Case is commented upon and differentiated from the Evans Case, and the Clark Case is cited as an authority for the conclusion reached by the court in the Evans Case. In the Clark Case, the abandoned wife presented herself at the domicile established by her...