Durnin v. Waddingham

• Decision Date: 02 May 1882
• Citation: 12 Mo.App. 145
• Parties: MATTHEW DURNIN, Appellant, v. E. J. WADDINGHAM, Respondent.
• Court: Missouri Court of Appeals

12 Mo.App. 145

MATTHEW DURNIN, Appellant,

v.E. J. WADDINGHAM, Respondent.

St. Louis Court of Appeals, Missouri.

May 2, 1882.

1. On appeal from a justice of the peace, amendments cannot be made in the circuit court changing the parties or the nature of the action.

2. Where, in an action of replevin against a married woman, she successfully defends on the ground of coverture, a judgment cannot be rendered in her favor against the plaintiff and his sureties on the replevin bond.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed, and judgment.

W. H. H. RUSSELL, for the appellant.

E. J. DELEHANTY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

On December 11, 1880, the defendant, Mrs. E. J. Waddingham, a married woman, executed to D. H. Evans, a chattel mortgage of certain furniture used in a boarding-house kept by her. In the deed of mortgage she is described as “a widow.” Afterwards, Evans assigned the mortgage and the notes thereby secured, to the plaintiff, who claims to have been a bona fide purchaser of the same, without knowledge of the fact that Mrs. Waddingham was a married woman. Default having been made in the payment of the notes thereby secured, or some of them, the plaintiff brought this replevin suit before a justice of the peace; gave bond in conformity with the statute; had the property delivered to him; caused it to be sold at auction; became the purchaser for $135, and afterwards sold it to a third person for $240. Judgment was rendered for the plaintiff by the justice of the peace, and Mrs. Waddingham appealed to the circuit court. In the circuit court, for the first time Mr. Waddingham came forward and testified that he was the husband of Mrs. Waddingham at the time when the mortgage was made and also at the time of the trial, and Mrs. Waddingham gave the same testimony. Testimony was given by the plaintiff tending to show that Mrs. Waddingham, at the time of the loan and execution of the mortgage, represented herself as a widow, and that the deed of mortgage in which she is described as a widow was read over to her before she signed it. These statements were denied by her in her testimony.

The plaintiff moved the circuit court for an order making Mr. Waddingham a party defendant, which order the court refused, and the plaintiff excepted. In this, the court was right. In causes appealed from a justice to the circuit court, amendments cannot be made in the circuit court which have the effect of changing the nature of the action, or of changing the parties to it, so far as to make it substantially a different suit.

The circuit court gave judgment for the defendant, against the plaintiff and his sureties in the replevin bond, for the recovery of the property taken under the writ of replevin or at her election, for the sum of $240, the value of the same, as found by the court, and also for costs. No instructions were asked for on either side, but as the only defence set up to the action was the coverture of Mrs. Waddingham, it sufficiently appears that this was the only ground upon which the court rendered its judgment.

We shall not again go over the subject of the disability of married women to make contracts. We considered it at sufficient length in the recent case of Danner v. Berthold (11 Mo. App. 351). The general rule is, that an attempted contract of a married woman having no separate estate, is void--not voidable merely, but void, and incapable of ratification or of operating as an estoppel against her. The chattel mortgage and...