Stevens v. Allen

• Decision Date: 24 January 1916
• Docket Number: 20763
• Citation: 139 La. 658,71 So. 936
• Court: Louisiana Supreme Court
• Parties: STEVENS v. ALLEN

71 So. 936

139 La. 658

STEVENS v. ALLEN

No. 20763

Supreme Court of Louisiana

January 24, 1916

On Rehearing, May 22, 1916

SYLLABUS

(Syllabus by the Court.)

Where the husband and wife were married in the state of New York and the wife some 12 years later, refused to follow the husband to the state of Oregon, and the husband subsequently became a resident of the state of Louisiana, the wife continuing to reside in the state of New York, held that the husband could not sue in the court of Louisiana for a separation from bed and board on the ground of the alleged abandonment in the state of New York, although the husband may have had a domicile of origin in the state of Louisiana. There can be no abandonment of the matrimonial domicile in this state where there has been no common dwelling. Provosty and O'Niell, JJ., dissenting.

Howe, Fenner, Spencer & Cocke, of New Orleans, for appellant.

J. M. Quintero, of New Orleans, curator ad hoc, for appellee.

PROVOSTY and O'NIELL, JJ., dissent.

OPINION

LAND, J.

This is a suit for separation from bed and board on the ground of abandonment. The curator ad hoc, appointed to represent the defendant, excepted to the jurisdiction of the court upon the admitted fact that the wife had never been within the limits of the state of Louisiana. This exception was sustained, and the suit was dismissed. The plaintiff has appealed.

Plaintiff's father, Gen. Walter H. Stevens, was an officer in the United States Army, who, in 1848 married plaintiff's mother in the state of Louisiana, and in 1861 resigned his office, and established his residence in the city of New Orleans. A short time thereafter Gen. Stevens entered the Confederate Army. It appears from the deposition of the widow of Gen. Stevens that, after the close of the Civil War, he went to Mexico for a time, but never changed his residence.

The plaintiff was born in the state of Virginia, but remained there only 7 months, and, when he attained the age of 19 years, was appointed as a cadet to the United States Military Academy of West Point from the state of Louisiana. Plaintiff, having graduated from said institution, entered the United States Army, and there remained continuously until March 1, 1913, when he retired with the rank of lieutenant colonel. Thereupon the plaintiff returned to New Orleans, where he has been residing since March, 1913. Plaintiff alleges 'that he has at all times retained his domicile in the city of New Orleans,' but there is no allegation or proof of his actual residence in that city prior to the year 1913.

Plaintiff further alleges that in July, 1899, while stationed temporarily as an officer in the United States Army at Ft. Meyer, Va., he was married to the defendant in the city of Brooklyn, N. Y. Plaintiff further alleges that in November, 1912, he was stationed at Ft. Stevens, Or., and that his said wife refused without cause to accompany him to Ft. Stevens, although plaintiff went to Brooklyn at the time and lived there for several days with his wife and urged her to return with him. Plaintiff further alleges that his wife is now residing at 747 Quincy street in Brooklyn.

Defendant and the plaintiff were married in the city of Brooklyn in 1899. In July, 1912, she and her husband were living there together; and there is nothing to show that the defendant...