State v. Vogt
| Decision Date | 16 April 1917 |
| Docket Number | 22468 |
| Citation | 141 La. 764,75 So. 674 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. VOGT. In re VOGT |
On Application for Rehearing, June 11, 1917
(Syllabus by the Court.)
The pendency of a divorce suit in the civil district court for the parish of Orleans, brought by the father, does not divest the juvenile court for the same parish of its jurisdiction to entertain, try, and decide a charge by the state, against the father, that he had willfully neglected and refused to provide for the support of his children.
The question of the truth of such a charge appertains to the merits of the case, and, if not proven on the trial, it is to be presumed that the juvenile court will dismiss the prosecution.
Loys Charbonnet, of New Orleans, for applicant.
A. V Coco, Atty. Gen., and Chandier C. Luzenberg, Dist. Atty., and Eugene Stanley, Asst. Dist. Atty., both of New Orleans (Vernon A. Coco, of Marksville, of counsel), for the State.
OPINION
The proceedings on which this application is based may be briefly stated as follows:
On February 7, 1916, Ella Jackson filed against Geo. G. Vogt, in the civil district court for the parish of Orleans, a suit for separation from bed and board, on the ground of ill treatment and abandonment.
On February 10, 1916, the defendant filed an answer, denying the allegations of abandonment and ill treatment, and, reconvening, alleged adultery on the part of the wife, and prayed for judgment of divorce and the custody of the three children of the marriage.
On March 2, 1916, the plaintiff filed a rule for alimony at the rate of $ 150 per month, based on an allegation that the defendant's salary was between $ 300 and $ 400 per month.
The judge fixed the alimony at the rate of $ 100 per month; and the defendant, failing to pay the same, was ruled for contempt, and on August 26, 1916, the rule was made absolute, and the defendant ordered to be imprisoned in the parish prison for the term of seven days; the court reserving the right to suspend the sentence whenever the defendant should make payment of said alimony, or such part thereof as the court might approve.
The next proceeding was a charge in the juvenile court against the defendant for nonsupport of his minor children, filed on January 9, 1917, and dismissed on plea to the jurisdiction of the court on January 17, 1917.
On the same day Ella Jackson filed in the civil district court a motion to discontinue the suit for a separation from bed and board at her own costs.
The motion was granted, but the order was subsequently amended, so as to except the reconventional demand of the defendant.
On January 22, 1917, the assistant district attorney filed in the juvenile court an information charging that George G. Vogt, on January 18, 1917, did willfully neglect and refuse to provide for the support of his three minor children, then and there in destitute and necessitous circumstances, contrary to the form of the statute.
On March 13, 1917, the defendant filed a plea to the jurisdiction of the juvenile court, based on the said proceedings, orders, and decrees in the suit of Ella Jackson v. George G. Vogt in the civil district court, as hereinbefore set forth.
In the plea the defendant averred that he had been paying alimony under the said judgment of the civil district court, which not only retained jurisdiction of the question of the custody of the children, but also of the incidental question of alimony.
The juvenile court overruled the plea to its jurisdiction, and thereupon the defendant gave notice of his intention to apply to the Supreme Court for relief.
The record discloses a clash between the jurisdiction of the civil district court, first invoked and exercised, and the assumed jurisdiction of the juvenile court.
In State v. Boettner, 127 La. 253, 53 So. 555, this court held that the wife, a defendant in a suit for a divorce, could not invoke the jurisdiction of the juvenile court for the purpose of compelling her husband to pay her alimony.
In the case of State v. McCloskey, 136 La. 739, 67 So. 813, the question was as to the custody of the minor child of the marriage.
It appears that the husband had filed a suit for a separation from bed and board, in which he had prayed that the custody of the child be awarded to him, at the same time retaining possession of the child; that the wife thereupon filed an affidavit in the juvenile court,...
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