Anderson v. Anderson

• Decision Date: 24 September 1875
• Parties: Anderson v. Anderson.
• Court: Kentucky Court of Appeals

74 Ky. 327

Anderson v. Anderson.

Court of Appeals of Kentucky.

September 24, 1875.

APPEAL FROM FLEMING CIRCUIT COURT.

L. W. ANDREWS, E. C. PHISTER, For Appellant.

APPERSON & REID, W. S. BOTTS, For Appellee.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

John B. McCrary, acting as the next friend for Henrietta and Charles Anderson, who were husband and wife, and at the time both under the age of twenty-one years, caused this action to be instituted against Peter H. Anderson, to recover damages for an alleged battery upon the person of the female plaintiff, Henrietta, committed during her coverture. Upon preliminary proceedings it turned out that McCrary had used the name of the husband, Charles Anderson, without authority, and finally said Charles appeared in court and repudiated the action of McCrary, and upon his motion his name was stricken from the petition as one of the plaintiffs. Appellants then moved the court to allow them to prosecute the action in the name of the wife alone. This motion was overruled. They then asked to be permitted to make the husband a party defendant. The court refused the permission asked, and then dismissed the petition. This judgment we are asked to reverse.

Section 49 of the Civil Code of Practice provides that —

"Where a married woman is a party her husband must be joined with her, except that when the action concerns her separate property she may sue alone; and where the action is between herself and her husband, she may sue or be sued alone."

Section 51 provides that —

"Where a husband, being a father, has deserted his family, the wife, being a mother, may prosecute or defend in his name any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had."

The female plaintiff in this case does not show that she is entitled to prosecute the action, under either of the exceptions set out in the two sections quoted. The action does not concern her separate estate. It is not between herself and husband, nor are their rights and interests necessarily so far antagonistic as to render it proper to make the husband a defendant.

While it does appear that the husband and wife are living separate and apart, and whilst it might be inferred that the husband had deserted her, or rather compelled her to leave his house and home, it does not appear either that he is a father or that she is a mother.

This case differs essentially from that of Hardin v....