Clark v. Wootton

• Decision Date: 27 January 1885
• Citation: 63 Md. 113
• Parties: ANNA M. CLARK v. HENRY E. WOOTTON and John S. Tyson, Claimants, etc. Anna M. Clark v. Kate E. Kemp and Ida E. Kemp, Claimants, etc.
• Court: Maryland Court of Appeals

63 Md. 113

ANNA M. CLARK v. HENRY E. WOOTTON and John S. Tyson, Claimants, etc.

Anna M. Clark v. Kate E. Kemp and Ida E. Kemp, Claimants, etc.

Court of Appeals of Maryland

January 27, 1885

Appeal from the Court of Common Pleas.

Charles E. Kemp and wife obtained a judgment on the 5th of October 1882, against the Baltimore City Passenger Railway Company for $10,000 for personal injuries to the wife. This judgment was affirmed by this court on appeal at October Term, 1883 (61 Md. 74). The appellant, a judgment creditor of the husband, issued an attachment on her judgment and laid it in the hands of the Baltimore City Passenger Railway Company. Wootton and Tyson filed a claim, as assignees of Kemp and wife to one-third of the fund in the hands of the garnishee and Kate E. Kemp and Ida E. Kemp filed a claim to two-thirds of the same fund as assignees. Two cases were docketed and were tried together before the court, without the intervention of a jury. The court decided that the judgment was protected from the husband's debts by the Constitution, Art. 3, sec. 43, and rendered judgment for the claimants in both cases. The plaintiff below appealed.

The causes were argued before ALVEY, C.J., ROBINSON, IRVING RITCHIE and BRYAN, JJ.

John Prentiss Poe and Arthur W. Machen, for the appellant.

Henry E. Wootton and John S. Tyson, for the appellees.

Bryan J., after stating the case, delivered the opinion of the court.

Charles E. Kemp and wife obtained a judgment against the Baltimore City Passenger Railway Company for bodily injuries to the wife. This judgment was attached by a creditor of the husband, and it was decided by the Court of Common Pleas that it was not attachable. The attaching creditor has appealed to this court.

As the suit by Mr. and Mrs. Kemp against the railway company was brought before the passage of the Act of 1882, ch. 265, the rights of the parties to this controversy are not affected by that Act. By the common law it was necessary that husband and wife should join in every action brought to recover damages for personal injuries to the wife. In case the husband died before the damages were recovered, they survived to the wife; but if the wife died before the damages were recovered, the suit abated. If the husband died after the recovery of the judgment, the whole interest survived to the wife; and if the wife died, the whole interest survived to the husband. They did not hold the judgment by a divisible title, one-half to the one, and one-half to the other, but, owing to the unity of the matrimonial relation, they held it as if they were one and the same person. The husband, however, had the right to receive payment of it, to release it, or to dispose of it as he might see fit. But if he died without having exercised these rights, the judgment became absolutely the property of the wife, and was not subject to the claims of his creditors.

Independently of his wife, the husband had no cause of action whatever for personal injuries to her, and in this respect his rights were different from those which he had in a certain class of choses in action of his wife, on which he might sue without joining her in the action. In this last description of cases the judgment itself in the husband's own name was regarded as a reduction into possession, and worked an extinguishment of his wife's rights. But although a judgment, in the joint names of husband and wife did not proprio vigore vest exclusively in the husband, so as to leave no interest in the wife, it was nevertheless subject to the payment of the husband's debts. In State v. Krebs, 6 H. & J. 31, it was decided that a bond, which had been given to the wife for the proceeds of the sale of her real estate by commissioners, was attachable by her husband's creditors, and this liability was deduced by the court as a consequence following necessarily from the right of the husband to sue on the bond in his own name. The opinion in the case further says: "The money, being at the disposal of the husband, is in truth and in law his, and is liable for his debts, and can never be enjoyed by the wife but on the single contingency of her surviving her husband before an appropriation is made of it by him." This case has been followed and approved in Peacock v. Pembroke, 4 Md. 280; Taggart v. Boldin, 10 Md. 104, and many other cases. The money due on the judgment which was attached in this case was by the common law as much at the disposal of the husband as any property which he possessed, and, therefore, according to the test just mentioned, would be liable to the claims of his creditors.

We must now, however, inquire whether any change in the rights of the respective parties to this controversy has been effected by the constitutional and legislative enactments which have been made. The Act of 1874, ch. 57, re-enacted with a slight modification the Act of 1853, ch. 245. This latter Act is codified as the first section of Art. 45 of the Code of Public General Laws. The original Act of 1853 was merely intended to exempt the property therein embraced from liability for the husband's debts, and did not have the effect of altering or impairing the marital rights of the husband. Schindel v. Schindel, 12 Md. 108, 313. But the Code, Art. 45, sec. 2, has expressly provided that the married woman should hold such property for her separate use with power of devising the same as fully as if she were a feme sole. It embraces, according to the enumeration of the Act of 1874, the property, real and personal, belonging to a woman at the time of her marriage; and all property which she may acquire or receive after her marriage by "purchase, gift, grant, devise, bequest, descent, or in a course of distribution." The right of property in...