Merrill v. Flint

Wyia', ,f. Defendant, who was married to plaintiff in July, 1864, appeals from the judgment lie rein decreeing a divorced vinculo matrimonii between herself and her said husband, and giving him the custody of their minor child, Katie. The grounds stated in the petition for the divorce are: That plaintiff was married t,o the defendant in New Jersey in 1864; in 1866 he came to New Orleans and established himself in business, and has resided here up to the present time; that when petitioner came to New Orleans he prepared to bring his wife and child with him, but Ms said wife peremptorily refused to follow him; that ho lias repeatedly called upon her to come and join him at the conjugal domicile, but she has persistently refused, and still refuses, to return to said domicile; that her conduct has been repugnant to the marriage covenant, and such as to render any further living together insupportable; that his said wife has left the place when' she was married to petitioner, without notification to him and without his consent, and refuses to hold any communication with Mm; and petitioner, only through information from other persons, has learned that his said wife is in some part of tile continent of Europe. Upon these allegations plaintiff prayed for the appointment of a curator ad hoc to represent his wifo, for his citation, and, after due proceedings and delays, for a judgment of divorce a vinculo matrimonii and for a decree giving Mm the custody of their minor cMld, [196] This .suit was filed on tin' seventeenth of March. 1879; on the third day thereafter the curator m! hoc appointed by tho court answered, admitting tlie marriage and the allegation that there was one minor child, the issue of said marriage, and denying all tlie other allegations of the petition. On the ue.xt day the depositions of three witnesses were taken in tho clerk’s office by consent of counsel, and the case submitted. On the succeeding day the court rendered judgment as prayed for by plaintiff, and three days later the judgment was signed. Tims within ten days tlie suit was filed, issue joined, evidence taken, the case submitted, judgment rendered and signed. On the fifteenth of *April, 1878, nineteen days after the signing of this judgment, the defendant, hy her attorney, prayed for and obtained an appeal, alleging ill the petition that she was a. resident, of the city and State of New York; that her said husband, without notice to her, obtained the judgment, of divorce contradictorily with a curator ml hoc appointed under the untrue statement that she was absent in Europe, when her said husband knew that she. was at her domicile in New York; that the first knowledge she had of said-suit, or said judgment, was on the ninth of April, 1878, a few days before this application for an appeal. In this court, tlie appellant assigns the, following errors: First — Tho court was without jurisdiction. Second— Tlie proceedings and evidence' do not warrant the judgment. Third — The defendant was not cited, and was not a party to the proceeding. Fourth — That said judgment was rendered hy consent illegally given by tlie curator ml hoc. . Without expressing an opinion as to tlie. first, third, and fourth grounds, we ¡we, from an examination of this ease, clearly of opinion that tlie second ground of error was well taken. The proceeding did not authorize the decree, and the evidence of the witnesses fails, to establish with sufficient legal certainty the charges made in the petition,'net one of the witnesses having’ any personal knowledge of the facts, except that defendant ivas not residing with her husband in this State. The, ground for the divorce is tlie charge of abandonment; no other cause'is' disclosed by the petition. The charge of abandonment, if properly presented and established, would authorize a judgment of separation from hod and board, and after one year shall have expired, and no reconciliation, a judgment of divorce. Revised Code, article 189. • Relief on'’’the ground of abandonment can only be had by complying with article 115 of the Revised Code, which requires that the abandonment .must bo made' to. appear by three reiterated summonses made to him or MirTrom month to month, directing him or her to return to the [197] mairinionial domicile, followed by a judgment which .slia.ll sentence him or her to comply with such request, tog-ether with a notice oí such judgment given to him or her from month to month for throe times successively. The summons and notice of judgment slmll he- ma.de to him or her at the place of his or her usual residence', If he or she lives in this State, and, if absent, at tin' place of residence of the attorney who shall be appointed to him or her by The judge for that purpose. This formality has not been complied with by plaintiff. In Perkins vs. Potts, 8 An. 14. it was held that no separation of husband and wife can be decreed for cause of abandonment without a compliance, wit.ii article 148 of the Civil Code, being- article 145 of the Kcviscd Cedi'. In Bienvenu vs. Buisson, 14 An. 387, it was lmld that a particular form of procedure is required by the .Code for obtaining a deem1 of separation on the ground of abandonment, and that form must he pursued to obtain relief. And this lias beeu the ruling of tins court, in other cases. Upon the face of the papers, therefore, plaintiff lias not presented a case entitling- him to relief. It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and it is decreed that plaintiff's suit be dismissed with costs of both courts.