Phillips v. Phillips

• Decision Date: 01 March 1926
• Docket Number: 27761
• Citation: 107 So. 584,160 La. 813
• Court: Louisiana Supreme Court
• Parties: PHILLIPS v. PHILLIPS

107 So. 584

160 La. 813

PHILLIPS v. PHILLIPS

No. 27761

Supreme Court of Louisiana

March 1, 1926

On Motion to Dismiss Appeal.

Appeal from Tenth Judicial District Court, Parish of Natchitoches J. F. Stephens, Judge.

Action by Amelia Phillips against Gabriel Phillips. From the judgment plaintiff appeals. On motion to dismiss appeal.

Appeal dismissed.

H. L Hughes and Breazeale & Breazeale, all of Natchitoches, for appellant.

Rusca &amp Cunningham, of Natchitoches, for appellee.

OPINION

O'NIELL, C. J.

The plaintiff sued for a decree of separation from bed and board, for an injunction forbidding her husband to dispose of the community property, and for a partition of the property. She prayed for and obtained a preliminary injunction and an inventory of the community property. The court gave her a decree of separation from bed and board and perpetuated the injunction forbidding the husband to dispose of the community property, but did not, in the decree, order the partition, or refer to that part of the prayer of the plaintiff's petition. The inventory of the community property was made and filed before the defendant answered the suit.

After the decree of separation was rendered, the plaintiff did not, within 30 days, formally accept the community. Eight months after the decree was rendered, she brought suit for a partition and settlement of the community estate, alleging that the judgment of separation was final. The defendant pleaded that the plaintiff had no cause or right of action, because she had not accepted the community within the 30 days after the decree of separation from bed and board was rendered. We are informed that the exception of no cause or right of action was overruled; but the ruling is not in the record in this appeal.

The argument of the exception of no cause or right of action directed the attention of the plaintiff's attorneys to the fact that the decree in the suit for separation from bed and board did not include an order for a partition of the community estate, and that the plaintiff had not formally accepted the community within the 30 days after the decree was rendered. Her attorneys, therefore, immediately asked for and were granted an appeal from the judgment rendered in the suit for separation from bed and board. The defendant, appellee, has moved to dismiss the appeal, on the grounds: First, that the citation of appeal was defective and did not allow appellee the time granted by article 583 of the Code of Practice, and, second, that the appellant acquiesced in the judgment appealed from, by suing for a partition of the community estate.

The defect in the citation of appeal was that it described the judgment appealed from as being dated the 16th of December, 1925, the day on which the appeal was taken, and the judgment was in fact dated the 16th of March, 1925. Besides, the citation of appeal was not served until five days before the return day.

The defects in the citation of appeal and the delay in serving it are not sufficient causes for dismissing the appeal, because it does not appear that the errors were due to any fault of the appellant or her counsel. Sections 36 and 1907 of the Revised Statutes and article 898 of the Code of Practice forbid us to dismiss an appeal because of any defect, error or irregularity in the petition or order of appeal, or in the citation of appeal, or the service thereof, unless it appears that the error is imputable to the appellant. The sections and article cited declare that in such cases the court shall grant a reasonable time in which to correct the errors or irregularities if they be not waived by the appellee. The statute (originally enacted as an Act of 1839, p. 170) was enacted to give sanction to the ruling (in 1836) in Guerin v. Bagneries, 9 La. 471, 472. See Hearing v. Mound City Life Insurance Co., 29 La.Ann. 832; Borde v. Erskine, 29 La.Ann. 822, 823; Murphy v. Factors' & Traders' Insurance Co., 33 La.Ann. 454, 455; Austin v. Scovill, 34 La.Ann. 484, 486; Succession of Townsend, 36 La.Ann. 447; Philips v. Her Creditors, 37 La.Ann. 701; Cockerham v. Bosley, 26 So. 814, 52 La.Ann. 65, 67.

The provision in the statute that reasonable time shall be granted the appellant to correct the error is merely to protect the appellant against the consequence of errors on the part of the officers of the court below, but does not require the appellant to obtain time or opportunity to correct such an error when the correction is not at all necessary. Hiller v. Barrow, 80 So. 538, 144 La. 282, and Taylor v. Allen, 91 So. 635, 151 La. 82. In this case it would be an idle ceremony to order that another citation of appeal should be served, after the appellee has taken cognizance of the appeal by moving to dismiss it on another ground than the defect in the citation, or service thereof. The statute, in terms, suggests that the appellee may waive any such defect in the citation or service of citation of appeal. As it would be of no benefit or advantage whatever to the appellee to be served with another citation of appeal, and as it is not asked for, we shall not order it.

On the question whether the appellant acquiesced in the judgment appealed from, the case is similar to White v. White, 95 So. 791, 153 La. 313, and 106 So. 567, 159 La. 1065, except that, in the judgment of separation from bed and board, in White v. White, the district court did not, as it did in this case, perpetuate the writ of injunction forbidding the defendant, husband, to dispose of the community property, and except also that, in White v. White, the plaintiff did not, as she did in this case, bring a new suit for a partition of the community estate. We overruled the motion to dismiss the appeal in White v. White, and amended the judgment by perpetuating the injunction forbidding the husband to dispose of the community property, and by ordering a partition of the property.

It is said that the idea of the attorneys for the appellant, in taking this appeal, was that the decree of separation from bed and board could not then be considered "finally pronounced" until the judgment should be affirmed in that respect by the supreme court; and that, under article 2420 of the Civil Code, appellant could then accept the community within 30 days after the judgment of this court would become final. The article of the Code reads:

"The wife, separated from bed and board, who has not within the delays above fixed [meaning 30 days], to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge, after the husband was heard, or after he was duly summoned." (The italics are ours).

Our opinion is that that article of the Code has been abrogated by the Act 4 of 1882 allowing the wife, when the marital community is dissolved by a decree of separation from bed and board, or divorce, or by the death of the husband, the right to accept the community under the benefit of inventory "in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory." It is not possible to reconcile those advantages, given by the act of 1882, with the disadvantage that was theretofore imposed by article 2420 of the Civil Code, upon the wife when the marriage was dissolved by a judicial decree. The act of 1882 puts the divorced wife, or wife separated from her husband by a decree of separation from bed and board, on the same footing with a widow, and gives to both of them, with regard to the right to accept or renounce the community, the same rights and advantages that beneficiary heirs have to accept or renounce a succession. The statute declares:

"That at the dissolution for any cause of the marriage community, it shall be lawful for the wife to accept the community of acquets and gains under the benefit of inventory, in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory."

Before the statute of 1882 was enacted, a wife could not accept the community under the benefit of inventory, whether the community was dissolved by death or by a decree of court. If she undertook to accept under the benefit of inventory, the effect was to make her accept unconditionally and become liable for half of the debts of the community. Monget v Pate, 3 La.Ann. 269. She had either to accept unconditionally or renounce the community. There was only this difference between the rights of a widow and those of a wife separated from her husband by a decree of divorce or of separation from bed and board: The widow was presumed to have accepted the community if she did not renounce it within 30 days after it was dissolved: whereas, the wife separated by a decree of divorce or of separation from bed and board was presumed to have renounced the community, and was forever denied the right to accept it, if she did not accept it within 30 days after final pronouncement of the decree of divorce or of separation from bed and board. The widow, therefore, according to article 2414 of the Civil Code, had the same delay (30 days) in which to make up her mind whether to accept or renounce the community, that was allowed to forced heirs in which to decide whether to accept or renounce a succession. During the delay of 30 days, the widow could not be sued for half of a debt of the community, nor an heir for a debt of the succession. After the expiration of the 30 days, the creditors of the community could sue to compel the widow to say whether she accepted or renounced the community, just as the creditors of a succession could bring suit to...