Rohr v. Stechman

LAND, J. Plaintiff sued for a divorce on the ground of marital infidelity. The defendant husband, after pleading the general issue, reconvened, praying for a judgment of separation from bed and board on the ground of abandonment. There was judgment in favor of the defendant, and the plaintiff has appealed. The charge of marital infidelity was supported by the testimony of a single witness, a stranger to the defendant. On the other hand, a witness well acquainted with the defendant testified to facts tending to sustain the defense of an alibi. Under the circumstances, we would not be justified in disturbing the finding of the judge a quo that the charge had not been satisfactorily established by a preponderance of the evidence. On the institution of the suit the court ordered that the residence of plaintiff’s father and mother be assigned as her domicile pending the suit. In his answer, defendant, after alleging abandonment, prayed that his wife be notified and summoned to return to the matrimonial domicile. It was so ordered by the court, and service was made on the plaintiff pending the suit for a divorce. In Jolly v. Weber, 36 La. Ann. 676, this court held in a similar case that the refusal of the wife to obey the summonses was jus [161] tified by the order of tbe court assigning her another and different domicile. It is therefore ordered that the judgment, rejecting plaintiff’s demand for a divorce and dismissing her suit, be affirmed; and it is further ordered that the judgment in favor •of the defendant on his reeonventional demand for a separation from bed and board be reversed, and his said demand be dismissed, with costs, as in case of nonsuit, defendant to pay costs of appeal and all costs occasioned by his reeonventional demand.