(dissenting).
• LSA — R.S. 9:301 provides:
“When married persons have been living separate and apart for a period of two years or more, either party to the marriage contract may sue, in the courts of his or her residence within this state, provided such residence shall have been continuous for the period of two years, for an absolute divorce. * * * (Italics mine.)
The source of this law is Act No. 269 of 1916, which is similar in all respects, except that it provided that it was requisite that the spouses live separate and apart for seven years and that the residence of the plaintiff within this State be continuous for that length of time. By Act No. 31 of 1932, these periods were reduced to 4 years and, by Act No. 430 of 1938, which was adopted as Section 301 of Title 9 of the Revised Statutes of 1950, above quoted, they were shortened to two years.
In Wreyford v. Wreyford, 216 La. 784, 44 So.2d 867, the question for decision was whether the designation in Act No. 430 of 1938 of the plaintiff’s residence as the forum for the suit was exclusive. The court held that it was not, taking the position that the Legislature did not intend to bar the filing of such a suit before the court of defendant’s domicile in accordance with the general law, Article 162 of the Code of Practice, and plaintiff’s action was maintained notwithstanding that she was a resident of Caddo Parish and not Red River Parish, where the suit was instituted.
I dissented in the Wreyford case, being of the opinion that Act No. 430 of 1938 is a special law; that its language fixing the place where actions shall be brought is *773clear and unambiguous and that it should be enforced .as written. See 216 La. 788, 44 So.2d 868. In the instant case the majority opinion is but an expected consequence and aftermath of the Wreyford decision. Under it, a non-resident is afforded the benefit of the two year divorce law, in cases where the defendant resides in the State. And, by this holding, the residential prerequisite to the bringing of the suit, viz., “ * * * provided such residence (in Louisiana) shall have been continuous for the period of two .years, * * * ” (parenthesis mine) has been effectually deleted from the statute, when the action is brought at defendant’s residence.
I think this conclusion not only disregards the letter of the law; it overlooks its purpose, its history and the construction which has been given it by this court from the time of its enactment. One of the effects of the decision, among others, is to enable a spouse who has deserted his family, by leaving them in this State for a place beyond the reach of the processes of our courts, to reappear within this jurisdiction and obtain the advantages of a law which was intended, in my humble opinion, to apply to citizens of Louisiana only.
The views I entertain find their support in the language of the statute and the adjudications of this court formulated at a time shortly after the original seven year law was enacted,. which have, until the Wreyford decision and that in the case at bar, been generally accepted as the established law over the past thirty years by the members of the bench and bar.
One of the first cases decided under Act No. 269 of 1916 was Laplace v. Briere, 1922, 152 La. 235, 92 So. 881, 882. There, the question for determination was whether the plaintiff had resided continuously in this State during the seven years separation, within the meaning of the statute. The plaintiff contended that the defendant could not question her residence in this State because the matter was one of jurisdiction ratione personae which should have' been pleaded specially and in limine. But the court observed:
“We are not prepared to give our assent to that interpretation of the statute. The question of continuous residence is as much a part of the plaintiff’s case, under the plain language of the act, as is the fact of seven years’ separation, and no court would be authorized to grant a divorce unless the fact of such continuous residence was established. The question of residence is jurisdictional ratione materiae, and can no more he waived hy the parties than can the period of separation he lessened. The obvious purpose of the statute under consideration was to grant the right to either party to a marriage .contract to obtain a final divorce in the courts of this state only on proof of seven years’ uninterrupted *775separation and living apart, coupled with proof of seven years’ continuous residence in this state.” (.Italics mine.)
Again, in the same year, the court, in Dodds v. Pope, 152 La. 397, 93 So. 198, in considering whether Act No. 269 of 1916 was unconstitutional, it being there contended that the statute attempted to vest jurisdiction in courts outside of the State, had this to say:
“The words ‘period of seven years’ are used three times in the section. First, the spouses must ‘have been living separate and apart for a period of seven years or more’; second, suit may be brought in the courts of their residence in the State ‘provided such residence shall have been continuous for the period of seven years,’ and the divorce ‘shall he granted on proof of the continuous living separate and apart of the spouses, during said period of seven years or more.’ Succinctly stated, we think the law means that either spouse may, when he or she has lived apart from the other continuously for a period of seven years or more, sue in the courts of his or her residence within the State for an absolute divorce, provided the 'residence within the' State and the living apart have both been continuous for a period of seven years.” (Italics mine.)
See also Trinchard v. Grace, 1922, 152 La. 942, 94 So. 856; McWilliams v. McWilliams, 1944, 206 La. 1007, 20 So.2d 295 and Spratt v. Spratt, 1946, 210 La. 370, 27 So.2d 154.
Thus, it is seen that, until the decision in the instant case, the law was well settled that the continuous residence1 of plaintiff within, the State for the period of seven, four or two years, as the case may be, was a prerequisite to the cause of action and was viewed as jurisdictional. This was in keeping with the letter and spirit of the law which is to afford Louisiana citizens the right tO' obtain a divorce without cause when they have lived separate and apart for two years, provided that the person seeking the benefits of the Act has remained in the State continuously for two years prior to the filing of suit.
And it will not do to say, as stated in the dicta contained in North v. North, 1927, 164 La. 293, 113 So. 852, that it is only necessary that the residence of one of the parties for the required time within the State is essential. That construction loses sight of *777the purpose of the statute, which was to accord to either spouse a right of action under the specified condition that he or she, as the case may be, had resided continuously within the State for the prescribed time, and actually places the defendant resisting the action in a more unfavorable position because of his or her residence here. I submit that there would be no good reason for the Legislature to permit a ncyi-resideht to prosecute a divorce suit because of separation for two years merely because the defendant, who does not wish to avail himself of the right accorded by the act, has been a resident of the State continuously for that time. Manifestly, the conditions upon which the advantages of the Act are bestowed are properly imposed on those who invoke the right given.
The authorities in other jurisdictions are in accord with our former pronouncements to which I think we ought to adhere. Approximately fifteen other states2 provide that living apart for a specified period without cohabitation is actionable for an absolute divorce. These statutes, which are similar to our own except for the time periods of voluntary separation, provide that plaintiff must be a resident of the State for a required time before he or she is entitled to bring suit without distinction being made between a suit at plaintiff’s or defendant’s domicile. Wynn v. Wynn, 39 Ariz. 580, 8 P.2d 1081; Day v. Langley, 202 Ark. 775, 152 S.W.2d 308; Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549; Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L. R. 1198; Note 2 A.L.R.2d 291, also Sitter-son v. Sitterson, 191 N.C. 319, 131 S.E. 641, .51 A.L.R. 763; 97 A.L.R. 958; Knabe v. Berman, 234 Ala. 433, 111 A.L.R. 867 and Otis v. Bahan, 209 La. 1082, 26 So.2d 146, 166 A.L.R. 498.
The judgment of the trial court should be affirmed.
. “Residence” essential to jurisdiction in a divorce proceeding instituted under Act No. 430 of 1938 means residence de facto et animo manendi, i. e., actual residence coupled with the intention to make the place of residence a permanent place of abode. Lepenser v. Griffin, 1919, 146 La. 584, 83 So. 839; Spring v. Spring, 1946, 210 La. 576, 27 So.2d 358; Walcup v. Honish, 1946, 210 La. 843, 28 So.2d 452 and Annotation 106 A.L.R. 6, 10.
. Ala.Code 1940, tit. 34, See. 20; Ariz. Code Ann. 1939, Sec. 27-802; Ark.Stat. Ann. 1947, Sec. 34-1202; D.C.Code 1940, Sec. 16 — 403; Idaho Code 1948, Sec. 32-610; Ky.Rev.Stat. 1948, Sec. 403.020; Md.Ann.Code, 1951, Art. 16, Sec. 33; Nev.'Comp.Laws, 1943, • Sec. 9467.06; N.H.Rev.Laws, 1942, Chapter 339, Sec. 6; N.C.Gen.Stat., 1943, Sec. 50-6; R.I. Gen.Laws, 1938, Chapter 416, Sec. 3; Vernon’s Tex.Civ.Stat. Art. 4629; Vt. Stat., 1947, Sec. 3205; Wash.Rem.Rev. Stat.Ann., 1932, Sec. 982; Wis.Stat., 1947, Sec. 247.07; Wyo.Comp.Stat.Ann., 1945, Sec. 3-5906.