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 reconventional 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 reconventional 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 reconvention, prays for the proper summons on *Page 843 the abandoning party to return to the matrimonial domicile. Bienvenu v. Her Husband, 14 La. Ann. 386, cited in the prevailing opinion in this case, is merely an example of a case where the defendant, as plaintiff in reconvention, prayed for a judgment of separation on the 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 by direct proof of the abandonment, administered on thetrial without having had recourse to the various summons andorders 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 could 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, *Page 844 and for alimony. I have examined the original record of the case in the archives of the court.