Muller v. Hilton

Voorhies, J. The plaintiff sues his wife for a separation from bed and board on the ground of abandonment. He alleges that he married her in the month of June, ISIS, in the city of New York, where she still resides ; that in 1852, he left New York on business and went to the Republic of Mexico ; that in 185J he came to and- established his residence in the city of New Orleans, where he has resided ever since, of which he has informed his wife, and, giving' her a formal notice that he was ready to receive her, desired to know whether she was willing or not-to come and join him here; to which she has given an evasive answer, equivalent tó a refusal; and that her long absence from the matrimonial domicil has no lawful cause. His petition concludes with a prayer that she he cited, through a curator ad hoc, and that after the usual proceedings a separation from bed and board be decreed in his favor against her. The curator ad hoc, appointed by the Judge a quo, excepted to the plaintiffs’ petition, on the ground that it disclosed no cause of action. [2] The court below having maintained the exception, the plaintiff hag appealed. “ Separation, grounded on abandonment by one of the married.persons, can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refhsed to return to live with the other, and when such refhsal is made to appear in the manner hereafter directed.” C. C. 141. Under this Article of the Code, we do not think the present action is maintainable. Unless by a fiction of law, it is difficult to perceive how the defendant can be considered as having withdrawn from the common dwelling, when it is alleged by her husband that she still resides in New York, where the marriage was contracted. It is then certain that the abandonment or cause of action did not originate since the plaintiff aoquired his alleged domicil in this State. In Edwards v. Green, 9 An. 317, this court decided that no jurisdiction oould be exercised in this State over causes of divorce, which arose while the parties were domiciled in another State, And this would seem to be the doctrine generally recognized by the States of this Union, whose jurisprudence we have consulted on the question. Indeed, in some cases, it has been held that a foreign judgment of divorce a mneulo maPrimonii, did not have the effect of dissolving the marriage where it was contracted, although rendered while the parties wore domiciled within the jurisdiction of the court rendering suoh judgment. 15 John. R., 121; 12 N. Hamp., 200; Ibid, 380; 10 Missouri, 296; 14 Mass., 229; 19 Ala. 499. The wife is certainly bound to to live with her husband and to follow him wherever he chooses to resido; hence it follows, we think, that her refusal to do so, while domiciled in this State, without a lawful cause, would entitle the husband to a separation from bed and board. Judgment affirmed. Re-hearing refused.