¶1The opinion of the Court was delivered by
¶2This is a suit for a divorce, based on a judgment of separation a mensa et ihoro, the lapse of one year since its rendition- and the absence of reconciliation.
¶3The defendant excepted, that the petition disclosed no cause of action, in this, that it does not set forth, that the plaintiff ever attempted to effect a reconciliation.
¶4The exception being overruled, the defendant pleaded the general issue and charged specially the invalidity of the judgment of separation.
¶5On the trial, the plaintiff and the defendant were heard as witnesses, the former without, the latter notwithstanding, objection ; to the overruling of which a bill was reserved.
¶6The defendant offered to introduce evidence to show the invalidity of the judgment of separation, but, upon objection, she was not allowed to do so, and a bill was retained to the refusal.
¶7I. The exception of no cause of action was properly overruled. It is not necessary that, in a suit of this description, the plaintiff, who-obtained the judgment of separation, should allege that he has made advances for a reconciliation to his consort, who, by the judgment of separation, was found to have committed some reprehensible act. It was for the defendant to make an overture had she thought one-proper under the circumstances.
¶8On the Merits.
¶9II. The evidence of both plaintiff and defendant, who were then husband and wife, R. C. C. 136, was reprobated by law and inadmissible. *1176Consent could not have legalized Its reception. 32 A. 643 ; 11 A. 628 ; R. C. C. 2281,136.
¶10III. No-other evidence having been introduced to show absence of reconciliation, the plaintiff should have been non-suited. On the strength of her answer, the defendant offered to prove the invalidity of the judgment of separation from bed and board, but the court refused The evidence, on the ground that the attack could be made only by appeal or suit in nullity.
¶11This-is perfectly true, on general principle ; but in a case like this, which necessarily first rests upon the existence of a valid judgment of •separation from bed and board, the validity or invalidity of such judgment was of vital importance. Upon the charge made in the answer, it was directly at issue and could have been inquired into in the absence of a formal suit in nullity, as the answer, couched as it is, may be •considered as partaking of the nature of a reconventional demand, justifying the inquiry and an adjudication upon it. The charges preferred •are grave. Judgments of separation from bed and board should be rendered neither upon the real nor upon the forced apparent consent of parties. 3 A. 328 ; 16 L. 26. Pothier Cont. de Mar., vol. 2, Nos. 517, 518. Fenet, Discours et Motifs, v. 9, 248 et seq.
¶12The defendant, having charged that the judgment was vulnerable and susceptible of annulment, should have been permitted to offer evidence in support of her allegation, although the plaintiff failed to substantiate his averments. The appellant had a clear right to be heard on the issue of nullity, which, if decided in her favor, would be destructive of plaintiff’s present action. It was .unnecessary for her to ask the nullity of the judgment in a different suit, which, on the trial of this case, could have been cumulated with it. The law does not favor a sircuity of actions. What she could have done in a distinct suit, she could do in the present one, and in the manner that she has done. 11 A. 510, 287 ; 13 A. 343 ; 28 A. 815 ; 5 A. 208 ; 12 A. 197 ; 21 A. 329 ; 7 M. 490, 567 ; 14 L. 58 ; 2 A. 494.
¶13IY. The theory of the defendant, that the judgment is a nullity because rendered in a case brought at a time when there was no law in force authorizing separations from bed and board, is not founded.
¶14Although at first glance it may seem that article 138, R. C. C. was apparently repealed by Act 76 of 1870, the object of which was expressly to amend and re-enact it, so as to read in the language which the act contains, still such is not the fact, for the double reason : 1st, -that its provisions were virtually incorporated in the substituted article, which, by enlargement, is made the more comprehensive, as it •embraces within its elastic compass cases not previously enumerated ; .and, 2d, that the following article, 139, which the act did not purport *1177to touch, embodies and retains, in full vigor and vitality, by express mention, as' a component part of itself, article 138 such as it stood before it was in the least modified by the act of 1870.
¶15For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and that the case be referred to the Civil District Court for the Parish of Orleans, which has superseded the court a qua, there to be further proceeded with according to the views herein expressed and according to law; the plaintiff and appellee to pay costs of both courts from the filing of the answer.