Holmes v. Holmes

• Decision Date: 06 January 1893
• Citation: 32 N.E. 932,133 Ind. 386
• Parties: HOLMES v. HOLMES.
• Court: Indiana Supreme Court

133 Ind. 386

32 N.E. 932

HOLMES

v.HOLMES.

Supreme Court of Indiana.

Jan. 6, 1893.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Emma E. Holmes against Mariah L. Holmes for the alienation of the affections of plaintiff's husband. From a judgment entered upon an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Applewhite & Applewhite, for appellant.

Olds, J.

This is an action by the appellant against the appellee to recover damages for alienating the affections of her husband. The appellee filed a demurrer to the complaint for the following causes: (1) That said plaintiff has not legal capacity to sue; (2) that said plaintiff's complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and appellant excepted, and assigns such ruling as error. We are not favored with any brief on behalf of the appellee in support of the ruling, and no objection is suggested or pointed out as to the insufficiency of the averments of the complaint. Counsel for appellant state that “the question to be determined is, can a married woman maintain an action in her own name for alienating the affections of her husband?” We therefore consider this question, solely, as the averments of the complaint seem to be sufficient, if the appellant has the legal capacity to maintain the action.

Since the decision by the circuit court and the filing of appellant's brief this court has considered and passed upon the question. In the case of Haynes v. Nowlin, (Ind. Sup.) 29 N. E. Rep. 389, it was held that a married woman can maintain an action in her own name against one who wrongfully entices her husband from her, and thereby deprives her of his consortion and support; and this but follows a line of decisions of other states, though the statutes of this state, enlarging the rights of married women, seem to have influenced the writer of the opinion in arriving at the conclusion reached in the opinion, and we think rightly so. It has been the policy of our own law to restore to married women full and equal rights with all other persons. To this end statutes have been enacted giving to the wife the right to contract, and to sue and be sued; and the statute further provides that every action shall be prosecuted in the name of the real party in interest. In Westlake v. Westlake, 34 Ohio St. 621, the court, in a very learned opinion, fully discussing the right of the wife to...