
    No. 8061.
    Cordelia Terrell vs. J. R. Boarman.
    A defendant, whose exception in a suit for separation from bed and board was tried and over-n>J ed, during his absence from court, and who subsequently files an answer on the merits, without first moving to rescind the ruling of the Court, and to reinstate Ms exception, will be considered on appeal, as having waited all objections to the irregularity of the trial of said exception.
    A charge by the wife, as a ground for separation from bed and board, that her husband had fled from justice when charged with an. infamous offense, is not sustained if the evidence shows that the charge was made after the husband’s departure, and that the husband, on being infoi med of the charge, returned and presented himself for trial, after which he was discharged, and satisfied the claim of the complainant against him.
    The lorbearance of a wife and her patience, enduring the cruel treatment, excesses and outrages of her husband for a long time, before complaining to the courts, must not be confounded with, or construed as condonation or reconciliation, as contemplated in our laws, in bar of the wife’s action for separation from bed and board.
    Charges of an outrageous character made by the defendant, in an answer to a suit for separation, eannot be considered as an element of excesses, or cruel treatment, in favor of plaintiff. The issue must be tendered on acts which have preceded the institution of the suit.
    APPEAL from the Civil District Court, for the Parish of Orleans. J.
    
      T. Gilmore & Sons, for Plaintiff and Appellee.
    
      S. S. Carlisle and J. D. Goleman, for Defendant and Appellant:
    Sec. 7, Art. 138, C. C., does not contemplate conferring criminal authority upon the civil tribunals organized under the Constitution of 1868. These tribunals eannot inquire into the guilt or innocence of one charged with a crime. The proofs mentioned in said Section have reference only to the finding of a court of competent jurisdiction, to-wit: a Criminal District Court, Recorder or other committing magistrate. If it is contended that this Article does confer criminal authority on civil courts, it violates Article S3, Constitution of If 68 — is a dead letter, and no action will lie thereunder.
    Exceptions fixed by order of court, must be notified to advise party and reasonable time alallowed. Const. 1879, Art. U, Rules District Court 5 6 IT. S. p. 635; 3 L R. p. 434 ; 2 L. II p. 171; 1 ÜT. S. p. 9; íi L. II p. 577; 9 An. p. 496; 13 An. p. 151.
    The averments inau answer cannot be ue» d as ground woik of plaintiff’s suit, which must stand or fill upon tb 0 state of facts previous to the filing of tlic petition. 9 L. R. p. 457; 2 L. p. 221; 5 An p. 33.
    In suit for divorce under the provisions of Sec. 7, Ait. 138, C. C , when the wife instigntes the criminal charge, and procures the making of a charge against her husband, the law will afford her no relief. This act of the wife is a serious and egregious wrong against the husband, which harsher right to any relief at the hands of the court, eren though the charge might in fact be true. The maxim, Volenti non fit injuria,” here applies as against tlie wife.
    Husbands are mon and not angels; staying out late at nigbt, want of means, failure to support wife and children, trilling outbursts of passion, unaccompanied by violence, gambling, inattenfion, and absence of affection, are not grounds for a separation ft am bed and board, 18 An. 404; 15 An. 593; 27 An. 594; 9 L. 421 ¡ 10 L. 251 ¡ 4 M. 174 ; 5 An. 32; 6 An. 403.
    Reconciliation bars an action for divorce based upon antecedent causes. C. C. Art. 152; 14 An. 386,
    The wife must follow the husband wherever he choses to go, and her failure to do so will not permit her to sue for separation based upon her husband’s absence. Abandonment can only be made to appear by compliance with the provisions of Art. 145, C. C.; 5 N\ S. p. 61; 8 An. p. 14; 14 Au. p. 386.
    The spouses being'specially prohibited by Jaw from testifying against each other, it follow/? that tbeir declarations, statements, etc , to third persons, cannot be considered by the 'Court. That the testimony of a witness of facts, circumstances, or tilings elicited from the spouses, must he disregarded by courts, though admitted without objection, since it is in contravention of a prohibitory law. As the spouses cannot testify, his or her declarations to third persons are inadmissible as testimony, since this would be doiug indirectly that which the law mandates shall not be done directly. C. O.-Art. 2231.
   The opinion of the Court was delivered by.

Poci-ié, J.

Plaintiff sues her husband for separation from bed and board, and urges the following grounds :

' 1. That being charged with the commission of an infamous offense, Of which lie was actually guilty, he liad fled from justice.

2. That during the last years of their married life, her husband had been guilty of excesses, cruel treatment and outrages towards her, of such a nature as to render their living together insupportable.

The case was tried by a jury, who returned a verdict in favor of plaintiff, and defendant appeals.

In a hill of exceptions, defendant complains that an exception which he filed to a second supplemental petition presented by plaintiff, and which was overruled, had not been legally tried, for the reason that he had not been duly notified, according to law and to the rules of the court, of the day fixed for the trial of 1ns said exception.

The record shows that defendant was not represented by counsel, or otherwise, at the trial of his exception, and does not contain satisfactory evidence of a legal and timely sendee of notice of the fixing of the trial of the exception; hut it nowhere appears that defendant urged a seasonable objection to the course therein pursued by the Judge, crashed the court to rescind its ruling, and reinstate his exception for trial. On the contrary, it appears that, without protest or objection, defendant moved to set aside the default which had been taken against .him, and filed an answer to the merits, under which state of facts he must he considered as having waived all objections to the alleged irregularity in the mode of trial of his exception.

The hill of exceptions which he took to the Judge’s course in trying Ms exception, which was signed or obtained only on the 31st of July, 1880, when the trial of the exception had taken place on the 24th of February previous, is not a seasonable objection, and cannot avail him; for his course, in filing au answer, without a preliminary attempt to reinstate his exception, concludes him as having waived the illegality of the proceeding complained of, and debars him at this time from obtaining any relief therefrom.

We see no error in the decree of tlie District Judge in overruling his exception. The ground of complaint urged by plaintiff in her supplemental petition, did not conflict with the ground urged in her original petition. It was merely cumulation. Giraud vs. Mazier, 13 A. 147.

On the merits, this case has been very bitterly contested, and brings up a record full of venom and crimination, following an answer, in which defendant urges many and very serious and grave charges of illcondnct against his wife, a repetition of which is herein omitted through a proper sense of respect and delicacy towards the high social position of both parties, and is unnecessary, by further reason of the total absence of any, or the slightest proof in support of the same, and rendered still more unnecessary', by the fact that, after hurling all these crushing accusations at plaintiff, the defendant urges no plea in reconvention, and simply' prays for the dismissal of her action, under which the marriage ties would not be disturbed and the spouses re-united. This, of itself, is a Ml justification of the wife from such charges, for the introduction, of which, in this case, defendant’s counsel have expressed becoming regret, in their brief as well a.s in oral argument.

1. The evidence in the record fails to establish the first ground pleaded by the wife. It is true, that defendant frequently obtained from friends and acquaintances, the loan of small sums of money, on checks drawn by him on a hank, in which he liad, to his knowledge, no funds or credit to meet the payment of his cheeks, and that for several months previous to his departure for the far West, he had no employment, and no other resource or pecuniary aid but that which he thus obtained, and that feoling that such a state of things could not safely' last much longer, and that, dreading the storm which would sooner or later burst over him, he concluded to remove from a city where he could anticipate nothing but trouble, suffering and annoyance. Yet, we fail to see any evidence in the record sufficient to convict him of the criminal and deliberate intent to commit the offense which was charged against him, and to flee from justice under such charge.

When he left, no charge had been made or was pending against him ; and as soon as he was apprised of the charge which had been instituted during his absence, he forthwith returned to this place, and presented himself for trial under the prosecution, whence he was discharged, after satisfying the claim which the complainant had against him.

Concluding, as we do, that the evidence does not support that portion of the wife’s complaint, we are not called upon to pass upon the bill of exceptions taken by defendant to the Judge’s charge to the jury' on that point, and to the admissibility of certain testimony which was introduced on the same point over defendant’s objections.

2. On the second ground relied upon by plaintiff, we find, in the record, evidence to establish the following facts :

Plaintiff and defendant, who were both. persons of refinement and culture, and both belonging to highly respectable and honorable families, moving in the best circles of society, were married in the year-1871, and established their domicil at the residence of the bride’s fattier, where it has remained ever since, with the interruption of a residence of two months in Chicago, during the year 1876.

At the time of his marriage, defendant was a member of a respectable commercial Ann in this city, which he soon after dissolved, forming a partnership with his father-in-law, as partnerin commendam. After a series of disasters he finally failed, and wound up his commercial business in the year 1875. From that time to this day, he ceased to provide for his wife and two children which had been born unto them, and from that time his conduct towards his wife underwent a great change. In 1876, he removed to Chicago, where he engaged in business, and to which place he caused his wife to join him with his children. But in a short time after this meeting, lie begged his father-in-law to send for his daughter and grandchildren, as the defendant had failed again, and had brought his family to utter destitution and distress, without even the means to pay their living expenses in a strange city. Receiving some pecuniary assistance from the father-in-law, the defendant then left for California, and his wife and the children returned toiler father’s home and support.

In 1878, the defendant returned to New Orleans, destitute of means and without employment, and again fixed his abode with his wife at her parents’ home in this city.

In addition to his reduced condition, and want of steady employment, he then became the victim of an insatiable passion for gambling, to satisfy which, he neglected all his duties to his wife and children, and resorted to schemes and devices, some of which are hereinabove related, in order to raise the money necessary to satisfy his infatuation for that vice. It is shown by the evidence that under the pressure of that dire passion and of other evil influences, lie became irritable towards bis wife and children, whom he utterly neglected, and whom he never heeded hut to abuse and tyrannize. He was never with thorn in the daytime, entered late at nig-ht every night for months, compelled lids wife, in the cold nights and even in sickness, to get up so as to let him in, and if she dared to remonstrate against his conduct, he abused and cursed her, threatened her with bodily harm, became enraged and furious, and made night hideous with his quarrels and brawls, and all this in ahouse which was not Ms, in a home not furnished by him, and under a roof where he was tolerated only for the sake of her whose feelings lie crushed, whose love he spurned, and whose devotion he contemned. Her appeals for peace were night after night met with imprecations and threats of violence and degradation; her remonstrances in the name of their common offspring, or of her parents, whose generosity and hospitality he thus abused, drew from him the vilest and most opprobrious epithets.

Considering that she was a lady of refinement and culture, reared and brought, up with delicacy and elegance, it is not a violent presumption to conclude that such conduct, such excesses, and such outrages, on the part of her husband, rendered her life with him unbearable, and a burden which she could not have endured much longer, had he not relieved her by another departure, which occurred in March, 1879, since which time the two spouses have never met.

In determining the nature of excesses or cruel treatment of one of the spouses towards the other, and the degree at which such conduct renders their living together insupjiortable, a proper regard must be had to their respective characters, to their education and habits.

Language and conduct, quarrels and wrangling, which, to certain women, would create no special uneasiness or create no great distress, would be crushing to ladies of education, refinement and culture, whose, feelings would thereby be hurt, even unto incurable misery and despondency.

Applying, under the light of our jurisprudence to the plaintiff in this case, the facts disclosed by the record, which we have carefully analyzed, we cannot escape the conclusion that defendant’s conduct, characterized for more than twelve months by neglect of his wife, indifference to her affection and devotion, followed by cruel and harsh treatment, the result of constant excesses of dissipation, culminating in ever recurring scenes of violent quarrels, crowned by foul and opprobrious epithets daily heaped upon her, was more than she could bear, and that to turn a deaf ear to her appeals to the courts for redress, would be to condemn her to an untimely grave, as a victim of despair, and a heart-broken wife whose love would be unrequited^ and whose devotion to her husband would be her fatal torture.

We know, and duly consider that the laws of Louisiana do not favor the separation of two persons who have been made one under the laws of Hod and of the State; and that our jurisprudence does not sanction the rupture of the sacred ties of marriage for trivial causes, or for mutual wrongs of the two spouses; but the intolerable sufferings of a faithful wife, caused by the excesses of an erring husband, speak in a voice which must open to her relief the doors of the courts of justice, and must summon to her aid the protecting shield of the law. We therefore conclude that the jury, by their verdict, in separating these spouses and placing these minor children under the care of their mother, whose virtues will safely guide them, and whose patient sufferings will teach them lessons of wisdom, have done justice to the parties.

Defendant’s counsel earnestly argued that the excesses of the husband, if any are proven, have been fully pardoned and forgiven by his wife, who continued to live in conjugal union with her husband until his final departure in 1879.

But we hold that the forbearance of a wife, and her patience in bearing with the cruel treatment of her husband, in the fond hope of his reform, and of his being restored to her as a kind husband, and to her children as an affectionate father, until at last she sees that all hope is lost, must not be confounded with, or construed as condonation or reconciliation, as contemplated in our laws and expounded in our jurisprudence.

In our consideration of the second ground of the wife’s complaint, we have confined our investigation to the evidence of facts and incidents only which have occurred since the spring of 1878, at which time the defendant returned to this city from California.

Defendant also complains of that part of the Judge’s charge to the jury in which he used the following language:

The jury, in passing upon these questions, may consider whether the charges in the defendant’s answer constitute a part of such outrages and ill-treatment,” as render the living of the spouses together intolerable. We agree with defendant’s counsel, and hold that such a charge was erroneous, and should not. have been given to the jury.

The issue, as made by the pleadings, contemplates only acts which have preceded the institution of the suit, and a fortiori cannot embrace, as grounds for separation, either the allegations of plaintiff or the averments urged by the defendant. Tourné vs. Tourné, 9 L. 457; Homes vs. Carrier, 16 A. 94; Daunoy vs. Hernandez, 33 A., not yet reported.

But, as the whole case is before us, and all the facts disclosed by the record are subject to our review and analysis, we are notfortliat reason compelled to remand the case for a new trial, and we are authorized to reach our own conclusion, eliminating all irrelevant evidence, and resting our conclusions upon legal testimony, which is ample in the record to sustain the verdict Of the jury. Vredenburgh et al. vs. Behan et al., 33 A. 627.'

Under this view of the case, a review of the Judge’s ex parte order, in granting to the mother the custody of the children during the pendency of the suit, is unnecessary and barren of any practical result, and' we are spared the trouble of passing upon the bill of exceptions taken thereto by the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be affirmed at appellant’s costs.

On Application for Rehearing.

The opinion of the Court was delivered by

Bermudez, C. J.

The correctness of the judgment rendered in this case is assailed on three different grounds:

The Court is charged with error:

1. In not remanding the cause for a trial, after legal notice of the exceptions filed by the defendant to the supplemental petition of plaintiff.

2. In not remanding the cause for a trial on the merits, because of illegal charge given by the Judge to the jury.

3. In considering as proved, facts which the evidence in the record does not establish.

L

The exception was fixed for trial for the 24th of February, 1880, at 11 o’clock, a. m., by motion made in open court, on the 20th of the same month. The sheriff’s return shows that a notice of trial was served on the first named day, but it does not give the hour. The brief of defendant’s counsel admits that the notice was served, at the office of one of them on the same morning, but is silent as to the time of day. It is therefore clear that, on the 24th, in the morning, knowledge of the fixing of the exception had been legally communicated to the counsel. The record does not show that any motion was made .on that day, questioning the regularity of the trial, or the correctness of the ruling made dismissing the exception. On the following day, the 25th, counsel for plaintiff moved for a default, which was granted. Neither do the minutes of that day, nor those of the 26th, nor those of the 27th, or of the 28th, show the taking of any rule to set aside the default and to reinstate the exception for want of timely notice. On the third judicial day following that on which the default was rendered, and hence, on the fourth after the overruling of the exception, instead of protesting against the double action of the Judge, so vehemently charged with illegality, the defendant, by counsel appeared into court and moved to set the default aside, which was accordingly done, on his filing an answer to the supplemental petition, an answer which covers ten pages of the transcript, and which contains charges the more scandalous and outrageou's, as they are, altogether unsupported by any evidence, and stain the record of the case, to the actually avowed mortification of counsel.

The case came up for trial on its merits on the 17th of June. It progressed on the 18th, and on the 19th, when the jury, after a short absence, returned a verdict in favor of plaintiff, with a right to the custody of the children. The court, satisfied with the verdict, rendered judgment upon it accordingly, which, after a fruitless attempt for a new trial, was signed on the 1st of July following.

Thirty days later, viz : on the 31st of July, defendant’s counsel j>resented to the District Judge a bill of exception for signature, in which tho facts appearing of record are stated.

This proceeding, which' was submitted to opposite counsel, does not show that the counsel interposed any objection to the trial of the exception, either before or after it was disposed of, previous to joining issue.

We agree with counsel for defendant, that this bill was ontirely sirperfluous for the purposes for which it was taken, as it was a mere repetition of facts disclosed by the record. Had it been proposed to show seasonable objection to such trial, touching which tho record is reticent, it might have been a useful proceeding. It could produce, and has had no legal effect, save to show that no objection was made to the trial so much complained of.

We agree likewise with the same counsel, that on appeal, the ruling of the Judge dismissing the exception, without timely service of a notice of trial, might have been successfully assailed, but in two instances only, however, the first, if the exception had been one of merit, the second, if the defendant had not acquiesced in the time of trial, by filing an unguarded answer, and by moving to set aside the default.

In this case, in the absence of a rule to reinstate tho exception and of any defense in this Court of the exception on its merits, we were bound to consider that the mode of trial had been acquiesced in, and that the exception had been abandoned. We therefore did not err in refusing to set aside the ruling dismissing the exception, and to remand the case for a new trial of that preliminary defense.

II.

The next complaint is, that because of tho illegal charge given by the Judge to the jury, the case should have been sent back.

We might have abstained from expressing any opinion, however correct it be, on the legality or illegality of the charge in question, as that question had not been submitted to our consideration, in the manner and form pointed out by law, but had been brought to our notice by an irregular and vicious proceeding.

The well established rule of civil practice is, that the party who objects to the ekarge, in whole or in part, given by the Judge to the jury, must do so before the cause is submitted to, and is in the hands of the jury. Where this is not done, the law infers an acquiescence, which operates as a bar to a subsequent agitation of the correctness of the charge.

This rule was not followed in the present instance. The record is absolutely reticent on the subject. The only objections which appear to have been made, are such as are found in the motion for a new trial and in a bill of exception filed on the 31st of July, some forty days after the charge was given, which does not allege that such bill was, at the time, reserved to such charge ; which does not show that it was previously submitted to opposite counsel or was read in open court in the presence of such counsel. Rills thus taken and presented, are not entitled to consideration by the Appellate Court, and the errors complained of therein cannot be reviewed.

III.

The third and last charge of error is, that this Court has considered as proved, facts which were not established on the trial of the case.

We have taken the pains of again wading through the 290 pages of this transcript. We have weighed all the testimony adduced. We have relieved the defendant from the first grave charge imputed against him, but have considered, with the jnry and with the District Judge, who endorsed their verdict, and who refused a new trial, that under the deplorable circumstances elicited and the law controlling the ease, the plaintiff was entitled to the relief for which she was craving and which had been allowed her.

In passing upon questions of such intense delicacy as have been raised and submitted in this unfortunate controversy, we .are happily not actuated by the violent feelings of sjmipathy which too frequently cloud the intelligence of counsel.

In the brief presented in this case for the defendant, we have been compelled to observe a forgetfulness of those rules of propriety and deference which a proper appreciation of the relations between court and counsel requires the latter to observe when they address those who are bound, by solemn obligations, to administer justice with impartiality and to the best of their knowledge and ability.

We are actuated by no pride of opinion, and are ever anxious to leaim and to correct any errors into which, under pressure of onerous labors, we know we are liable to fall.

But counsel who, in the exercise of the sacred right guaranteed to their clients, suggest such errors, must do so in language considerate, measured and dignified. Exaggerated statements, declamatory epitliets and offensive aspersions of either the diligence or judgment of the Court, are suggestive of equivocal respect and will not he tolerated.

In the present instance, we have constrained ourselves to overlook the fault of counsel, for whom we have always entertained respect, and to attribute it to other motives thán intentional discourtesy.

We trust we shall not again be called upon to act on such a case.

The application for a rehearing is refused.  