Van Maren v. Johnson
Before: Field
Synopsis
'In an action by the wife for money, which, when recovered, will be her separate property, subject to the management and control of the husband, he is properly joined with her as plaintiff.
In the exceptional cases mentioned in sec. 7 of the Practice Act, the statute is not obligatory on the wife to sue or defend alone; it confers only a privilege which in many cases it may be important for her to assert for the protection of her interests, and in the exercise of which the fullest liberty should be accorded her. When the action concerns her separate property, and is not between herself and husband, she may sue with or without him.
Where suit is brought against a female, who subsequently marries, her husband must be made co-defendant. But this should be done, and an averment of the marriage be made, by a supplemental complaint, and not by an amendment to the original.
If the husband be made a party at the trial, upon suggestion of the marriage, in open Court with the consent of all parties, by an order of Court, and the complaint is then and there amended by simply inserting the names of the husband and wife in place of the female defendant alone, and they then file an answer, it cannot be for the first time objected in the Supreme Court, that a supplemental complaint should have been filed.
Ror is it any objection in such case that, after the amendment of the complaint, the suit was against defendants jointly, while the evidence failed to show any canse of action against the husband. The action being for services rendered the defendant, wife, previous to her marriage, the liability of the common property of the defendants, and the necessity of making the husband a party, arise from the subsequent marriage; and as the orders and proceedings of the Court, however informal and irregular, show the true facts of the case, the judgment will be a bar to any future action against the defendants for the same cause.
Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendants, and in consequence the character of the judgment which is sought, cannot bo incorporated into the original complaint by an amendment, without presenting averments inconsistent with the date of the commencement of the action.
In suit against husband and wife for services rendered by plaintiff to 'the wife before her marriage, judgment may be entered against both defendants, with a direction that it be enforced only against the separate property of the wife, and the common property of both.
The title of the common property is in the husband, and he can dispose of the same absolutely, as if it were his own separate property. The interest of the wife is a mere expectancy, like the interest which an heir may possess in the property of his ancestor.
Field, C. J. delivered the opinion of the Court Cope, J. concurring.
This is an action brought for services rendered by the plaintiff Constantina, previous to her marriage with Van Maren, to the defendant Emily, previous to the latter’s marriage with Johnson. The intermarriage of the plaintiffs transpired before the institution of the action, and the intermarriage of the defendants during its pendency.
We are clear that the action is rightfully brought in the name of the plaintiffs. Though the proceeds, which may be received from the judgment, will constitute the separate property of the wife, yet the control and management of the same will devolve, under the statute, upon the husband. He will be entitled to take immediate possession of the same, and for that reason, if for no other, was properly united with betas a party.
The statute provides that when a married woman is a party, her [311]husband shall be joined with her, except in certain specified cases. (Prac. Act, sec. 7.) In those exceptional cases, the statute is not obligatory upon the wife to sue or defend alone; it confers only a privilege which, in many instances, it may be important for her to assert for the protection of her interests, and in the exercise of which, the fullest liberty should be accorded to her. When the action concerns her separate property, and is not between herself and husband, she may seek the aid of the Court in company with him or without him.
The intermarriage of the defendants was suggested by the counsel of the defendant, Emily, and upon their motion, her husband was made a co-defendant. This proceeding was proper, and indeed, necessary; but the husband should have been brought in, and the averment of the marriage should have been made by a supplemental complaint, and not by an amendment to the original. Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendants, and in consequence, the character of the judgment which is sought, cannot be incorporated into the original complaint by an amendment, without presenting averments inconsistent with the date of the commencement of the action. No objection, however, is taken on that ground in the present case, and the matter is only alluded to because the practice is one of frequent occurrence, and ought not to be followed.
The judgment was rendered against both defendants, the husband and wife, with a direction that it be enforced only against the separate property of the wife, and the common property of both. The objection taken is the subjection, which the judgment authorizes, of the common property to its payment. The statute in terms provides, that the separate property of the wife shall be liable for her debts contracted previous to the marriage, and at the same time, that the separate property of the husband shall not be thus liable. It is silent as to the liability of the common property for such debts, and also as to the liability of that property for the previous debts of the husband. Yet the common property is not beyond the reach of the husband’s creditors existing at the date of the marriage, and the reason is obvious; the title to that property rests in the husband. He can dispose of the same absolutely, as if it were his own separate property. The interest of the wife is a mere expectancy, like the interest which an heir may possess in the property of Ms ancestor. (Guice v. Lawrence, 2 La. Ann. 226.) The objection must then be solved by considerations aris
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