Leonard v. Townsend

By the Court, Sanderson, C. J. This is an action by a husband and wife to recover a lot in the City and County of San Francisco, alleged in the complaint to be the separate estate of the latter. The case was tried by a referee, to whom it was referred with directions to try all the issues, both of law and fact, and report a judgment thereon. The referee reported a finding and judgment in favor of the defendants, and thereupon the plaintiffs moved the Court to set aside the report of the referee and grant a new trial upon the ground, in substance, that upon the facts as found by him the judgment should have been for the plaintiffs. By stipulation the report of the referee was made a statement of the case upon the motion for a new trial. The motion was denied, and the plaintiffs have appealed.

It appears from the finding of the referee that the plaintiff, Sidonie Leonard, then being the wife of the plaintiff, Hiram Leonard, in 1853 brought an action, as sole plaintiff to recover the premises in controversy in the present action, against certain other parties then in possession. In that action she recovered judgment. This judgment was, however, reversed on appeal and a new trial ordered. The case was remanded to the District Court and placed on the calendar for that purpose. On the day appointed for the trial the plaintiff failed to appear and prosecute her action, and upon motion of the defendants it was dismissed at her costs. In due course the costs were taxed and judgment therefor entered against her. Upon this judgment execution was issued, and the premises which were in controversy in that action and in this were levied upon and sold to the defendant Townsend, who in due course obtained a Sheriff’s deed therefor.

Upon the foregoing facts the referee held that the title of the plaintiff Sidonie Leonard passed to the defendant Townsend by the execution sale and Sheriff’s deed, and accordingly rendered a judgment in favor of defendants.

The validity of the judgment under which the" Sheriff’s [443]sale to Townsend was made is the only question involved in this case.

It is contended on the part of the appellants that the judgment in question, and all the proceedings thereon, including the Sheriff’s deed, are null and void, because, Mrs. Leonard being a married woman and not a sole trader, no valid judgment for costs could be rendered against her.

In support of this point the learned counsel for appellants have filed an able and ingenious argument, founded upon the principles of the common' law touching the rights and disabilities of married women and the claim that those” principles, so far as the question under debate is concerned, are unaffected by our Practice Act. As we understand the argument, it is to the effect that our statute removes the common law disabilities of married women, so far as their capacity to sue in certain cases is concerned, but does not annex to that capacity the liabilities which are imposed by the statute upon all other suitors.