Frederick Burger Et Ux. v. Belsley

• Decision Date: 30 September 1867
• Citation: 1867 WL 5222,45 Ill. 72
• Parties: FREDERICK BURGER et ux.v.JOSEPH BELSLEY and JOHN MEISTER.
• Court: Illinois Supreme Court

45 Ill. 72

1867 WL 5222 (Ill.)

FREDERICK BURGER et ux.

v.JOSEPH BELSLEY and JOHN MEISTER.

Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

The case is stated in the opinion.

Messrs. HOPKINS & CHITTY, for the plaintiffs in error.

Mr. BURNS, for the defendants in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of trespass vi et armis, for an assault and battery and false imprisonment, brought by Frederick Burger and Barbara Burger, in the Woodford Circuit Court, against Joseph Belsley and John Meister. The declaration counts on injuries to Barbara, the wife of Frederick Burger. Issues were formed on pleas filed by defendants, and at the August Term of the court, Frederick, by an attorney, not previously connected with the suit, entered a motion to dismiss the suit, and in support of his motion filed an affidavit stating that it was commenced without his authority. His co-plaintiff resisted the motion and filed counter affidavits. From these affidavits, there seems to have been authority by him to bring the suit. This motion was overruled.

He then entered a motion to require his co-defendant to indemnify him against the costs of suit. This motion was sustained. Barbara then filed a bond under the rule. This was objected to by Frederick, because Barbara, with others, had signed it as a party, and because it did not cover the costs which accrued prior to entering the motion to dismiss. The court sustained this motion, except as to costs already adjudged, against defendants. Barbara then tendered a bond complying with the order of the court, except it did not provide for indemnity against costs already accrued, and leave was asked to file this bond and proceed to trial, but the motion was overruled.

She then entered a motion, sustained by affidavit, to be permitted to prosecute as a poor person, but this motion was refused by the court, and the suit was dismissed. Exceptions were taken and preserved in the record, to the various rulings of the court against Barbara Burger; and the case is brought to this court, and the judgment of the court below, dismissing the suit, is insisted upon as error.

At the common law, the husband and wife must, as a general rule, join to recover for damages to either the wife or her property. But this was not so where the husband and wife were living separately, without her fault. Love v. Moynehan, 16 Ill. 277; Prescott v. Fisher, 22 Id. 390. In those cases it was held, that where a wife was deserted by her husband she might acquire property and sue and be sued as a feme sole. In the first of these cases it was said that it is the presumption, that the husband and wife live together. We must presume, in this case, that the husband and wife were living together at the time the suit was commenced, and when he gave his consent that the suit might be brought in their joint names, and he cannot now show that they were separated, and that the suit should have been brought in the name of the wife alone, and prevent its further prosecution.

If, however, after the...