Opinion
No. 119.
June 30, 1961. Rehearing Denied October 9, 1961. Certiorari Denied November 29, 1961.
Summary proceeding by husband to evict wife from premises she refused to vacate following judgment of separation. From an adverse judgment of the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 53-591, Division "A", L. Julian Samuel, J., the wife appealed. The Court of Appeal, Yarrut, J., held that where matrimonial domicile during marriage was separate property of husband, who was granted a judgment of separation, husband could sue for eviction of wife, who was awarded $150 monthly alimony but denied prayer to have premises assigned to her as a residence during pendency of suit.
Affirmed.
C. Cyril Broussard, New Orleans, for defendant-appellant.
Richard A. Thalheim, Gordon L. Bynum, Gretna, for plaintiff-appellee.
Before McBRIDE, YARRUT and HALL, JJ.
This is a summary proceeding, under LSA-R.S. 13:4911, commonly referred to as the Sharecropper's Act (LSA-C.C.P. Art. 4702 since January 1, 1961), to evict defendant from premises she refused to vacate. There was judgment of eviction and defendant appealed.
The parties are husband and wife, separated by judgment of court, as per judgment rendered on appeal Niemann v. Seeling, La. App., 133 So.2d 161.
This proceeding was filed November 23, 1959, about four months after the rendition of the judgment of separation between the parties in the District Court.
The only defense urged by the defendant is that the premises she occupied was still the matrimonial domicile, and she could not be sued or evicted by her husband since C. P. Art. 105 (now LSA-R.S. 9:291) permits the wife to sue her husband during the marriage in certain specific cases, not the husband to sue his wife.
It is admitted that the property is the separate property of the husband, and was the matrimonial domicile during the marriage. The record in the separation suit discloses the wife was awarded $150 monthly alimony, and her prayer to have the premises assigned to her as a residence during the pendency of that suit was denied.
There is no longer any doubt that, during the marriage, the husband may sue his wife for the recovery of his separate and paraphernal property; a fortiori after judgment of separation.
Since the husband seeks to recover possession of his paraphernal property from his separated wife, as authorized by the case of Kramer v. Freeman, 198 La. 244, 3 So.2d 609, and cases therein cited, the judgment of the District Court is affirmed, costs to be paid by defendant.
Affirmed.