Bullock v. Bullock

O’NIELL, C. I. (dissenting). My opinion is that the judgment of the district court, ordering that the wife be summoned to return to the matrimonial domicile, in response to the defendant’s reconvéntionai demand, is correct, and should be affirmed. The decisions cited in the prevailing opinion in this case are not good authority for the ruling that a reeonventional demand for a decree of separation on the ground of abandonment cannot be allowed in a suit for divorce. Such a demand in reconvention' is allowable if the defendant, as plaintiff in re-convention, prays for the proper summons on *843 the abandoning party to return to tbe matrimonial domicile. Bienvenu v. Her Husband, 14 La. Ann. 386 , cited in tbe prevailing opinion in tbis ease, is merely an example of a case where tbe defendant, as plaintiff in re-convention, prayed for a judgment of separation on tbe ground of abandonment, without asking that the absent spouse be summoned to return to the matrimonial domicile. It was so said in Ashton v. Grucker, 48 La. Ann. 1194 , 20 So. 738, 741 , thus: “In.the Bienvenu Case defendant was evidently seeking to obtain a separation from bed and board on the ground of abandonment of the wife 6y direct proof of the abandonment, administered, on the trial without having had recourse to the various swnvmons and orders to return prescribed by the Code." (The italics are mine.) In the Ashton Case, the ruling on the defendant’s reconventional demand was that the court coifld not give effect to the three summonses which had been served upon the plaintiff to return to the matrimonial domicile during the pendency of his suit for a separation from bed and board. Monteleone v. O’Hanlon, cited in the prevailing opinion in this case, was not a suit for divorce or for separation from bed and board, but a suit to annul the marriage. In Spiller v. Spiller, also cited in the prevailing opinion, the defendant did not pray, in her reconventional demand, that the plaintiff should be summoned to return to the matrimonial domicile. She merely alleged that her husband had abandoned her and had circulated scandalous and defamatory stories about her; and for that she merely prayed for a decree of separation from bed and board, and for alimony. I have examined the original record of the case in the archives of the court.