Hamilton v. Hamilton
Decision Date | 22 January 1924 |
Docket Number | C. C. 219. |
Parties | HAMILTON v. HAMILTON. |
Court | West Virginia Supreme Court |
Submitted January 9, 1924.
Syllabus by the Court.
A married woman may sue her husband at law upon a promissory note executed by the husband to a third person, and which the wife now holds as legatee under the last will and testament of the promisee; no right of contract between the husband and wife being involved.
Case Certified from Circuit Court, Marion County.
Proceeding by way of motion for judgment by Mary A. Hamilton against Joseph F. Hamilton. A special plea of defendant was stricken and the question certified. Affirmed.
H. H Rose, of Fairmont, for plaintiff.
Shaw & Shaw, of Fairmont, for defendant.
Proceeding by way of motion for judgment, under section 6, chapter 121 Code (Barnes' 1923), the plaintiff on the 8th day of March, 1919, served the defendant with written notice that she would, on the 31st day of March, 1919, move the circuit court of Marion county for judgment against him in the sum of $319.83, upon a certain negotiable promissory note for $200 dated April 5, 1909, signed by the defendant as maker and payable to the order of Coleman Whalen, one day after date with interest from its date; said note having thereafter passed to the plaintiff as a legatee under the last will and testament of said Coleman Whalen. After the case had been tried once, the defendant on April 29, 1921, filed his special plea averring in effect that the relationship of husband and wife existed between the parties at the time of the execution of the note sued on and had ever since continued. On motion of the plaintiff this plea was stricken from the record on the ground that it constituted no defense to the action, and from that ruling of the trial court the case is certified here.
It is asserted for the defendant, in support of the plea that in this state a married woman cannot sue her husband at law, although the action be for the recovery of her separate property. At common law, because of the legal fiction that during coverture the legal existence of the wife is suspended and merged in that of the husband, neither spouse can maintain against the other an action at law. Furthermore, while laboring under this common-law disability, she cannot contract with her husband or third persons, nor ordinarily sue or be sued without the husband being joined. But our statutes have greatly enlarged and increased the rights and powers of married women respecting the ownership of property and the right of contract.
Prior to 1893 the statute regulating suits by or against married women (section 12, chapter 66, Code 1887) was as follows:
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Holt v. Holt
... ... since the transaction here was solely between the husband and ... wife (as distinguished from Hamilton v. Hamilton [W ... Va.] 121 S.E. 290, wherein the husband's note was ... made payable to a third party and assigned to the wife), ... ...