Homes v. Carrier

Buchanan, J. Defendant sued plaintiff, her husband, for divorce, on the ground of adultery. This suit, after lasting a considerable time, was dismissed, plaintiff in the action (defendant herein) failing to appear on trial to prosecute the same. Thereupon the present plaintiff brought this suit against his wife, for separation of bed and board, on the ground of public defamation ; the defamation alleged, consisting in the allegations of defendant’s petition in the first suit. Defendant answers by reiterating her charges of adultery; although she does not now claim a judgment of divorce, but only that plaintiff’s action be dismissed. The plaintiff has not made out a case of public defamation, as contemplated by article 139 of the Civil Code, The charge of adultery, preferred by the wife against the husband, to serve as a basis for a judgment of divorce, does not, of itself, amount to a defamation, upon the failure of the former to sustain the allegation by proof. If the accusation be not wanton or malicious, although unfounded in point of fact, it cannot, with propriety, he said that there was a public defamation. We add, that we agree with the Judge of the District Court, that defendant has failed to prove the charge of adultery against her husband. , Judgment affirmed, with costs. Land, J., absent.