Opinion
No. 38228.
June 16, 1947. Rehearing Denied July 3, 1947.
Appeal from Fourteenth Judicial District Court, Parish of Beauregard; Mark C. Pickrel, Judge.
Suit by Mrs. Mable S. Roberts Williams against Rollie A. Williams for separation on ground of cruel treatment, wherein defendant reconvened and asked for a separation on ground of abandonment. From a judgment granting defendant a separation on his reconventional demand, the plaintiff appeals.
Reversed and proceedings dismissed.
J. S. Pickett, of Many, for plaintiff-appellant.
Kay Kay, of De Ridder, for defendant-appellee.
O'NIELL, C. J., dissenting.
The plaintiff, Mrs. Mable S. Roberts Williams, brought suit against her husband, the defendant Rollie A. Williams, seeking a separation on the ground of cruel treatment. The defendant reconvened and asked for a separation on the ground of abandonment. The trial court rejected the plaintiff's demand and gave the defendant judgment of separation on the ground of abandonment. The plaintiff has appealed. After the appeal was lodged in this Court the plaintiff interposed exceptions of no right or cause of action to the defendant's reconventional demand.
After reading the testimony adduced on the trial of this case we have reached the conclusion that the trial judge was correct in holding that the plaintiff had failed to establish the allegations of her petition.
A reconventional demand on the part of a defendant for a separation on the ground of abandonment is not allowable. A demand for separation on such ground must be brought by direct action, and cannot be brought in any other form. This Court pointed out, in the case of Bullock v. Bullock, 174 La. 839, 141 So. 852, that the settled jurisprudence of this State is to the effect that a reconventional demand on the ground of abandonment is not allowable.
The case of Bullock v. Bullock, supra, is not only decisive of the issue but is also authority that such question may be raised by exceptions of no right or cause of action in this Court.
For the reasons assigned, the judgment of the lower court is reversed and set aside, and the proceedings are dismissed; the costs of the lower court to be paid by the plaintiff and the costs of the appeal to be paid by the defendant.
O'NIELL, C. J., dissents for the reasons given in his dissenting opinion in Bullock v. Bullock, 174 La. 839, 141 So. 852, 1932.
Supplemental Opinion
It has been suggested that the defendant should be cast with the cost of the lower court as well as that of the appeal in view of the fact that they are debts of the community. On considering the suggestion, we have arrived at the conclusion that the defendant should be required to pay the entire cost of the proceedings in view of the fact that the proceedings were dismissed and there was no dissolution of the community.
It is now ordered that the cost of the lower court and the cost of the appeal is to be paid by the defendant, Rollie A. Williams. As thus amended, our original decree is affirmed.