Bullock v. Bullock

Plaintiff sued defendant, her husband, for separation on the ground of cruel treatment. Defendant reconvened, demanding a separation for abandonment. The court below rejected plaintiff’s demand, and gave defendant judgment in reconvention, ordering that plaintiff be summoned in the manner provided by law to return to the matrimonial domicile, and awarding defendant custody of the children pending further proceedings. Plaintiff appealed.

Plaintiff alleged that her husband.refused to provide proper food and clothing for her and -their two small children; that he often cursed and whipped her, particularly on the morning of May 13, 1928, when he drove her away from home.

.Defendant denied the cruel treatment alleged, and averred that without any just cause his wife left home during his absence, taking the children with her, her act amounting in fact and in law to abandonment.

The trial judge reached the conclusion that plaintiff failed to establish the allegations of her petition, and after reading the testimony adduced on the trial of the case, we have reached the same conclusion.

*841 In this court plaintiff has filed an exception of no right or cause of action to defendant’s reeonventional demand.

Peremptory exceptions founded on law may he pleaded in the Supreme Court. Code Prac. art. 902; Lassus v. Clarke, 134 La. 865, 64 So. 801; Veasey v. Peters, 142 La. 1012, 77 So. 948; Rogers v. Thermatomie Carbon Co., 157 La. 193, 102 So. 304.

Defendant prayed in his reeonventional demand that plaintiff be summoned to return to the matrimonial domicile, but no preliminary order to that effect was granted by the court, and no summons was issued under defendant’s prayer.

The settled Jurisprudence is that a re-conventional demand on the part of defendant for a separation on the ground of abandonment is not allowable. A demand for separation on that ground must be brought by direct action in the manner prescribed by Civ. Code, arts. 143 and 145, and cannot be brought in any other form. Bienvenu v. Her Husband, 14 La. Ann. 386; Ashton v. Grucker, 48 La. Ann. 1194, 20 So. 738; Monteleone v. O’Hanlon, 159 La. 796, 106 So. 308; Spiller v. Spiller, 170 La. 813, 129 So. 212,

Act No. 271 of 1928, amending article 145 of the Civil Code, is not applicable, where separation is demanded in reconvention. The proof of abandonment by reiterated notices is dispensed with only where the defendant in a suit for separation has filed an answer to the main demand for separation. Spiller v. Spiller, supra.

Defendant contends that plaintiff’s exception is not well founded, because the Judgment on his reeonventional demand is not one of separation, but only 6ne ordering that notices to return to the matrimonial domicile be issued to plaintiff. Defendant argues that the judgment in that respect is more in the nature of an interlocutory decree than a final judgment, from which plaintiff is not entitled to an appeal.

Whether the judgment be interlocutory or final is unimportant. It was not within the power of the court below to render any other judgment than one of dismissal on defendant’s reeonventional demand.

For the reasons assigned, the judgment is affirmed on the main demand, and annulled on the reeonventional demand; and it is now ordered that defendant’s reeonventional demand be dismissed, reserving defendant’s right to assert in a direct action in the manner provided by law the cause of action set forth in his reeonventional demand.