Kavanaugh v. Brown

• Decision Date: 31 December 1846
• Parties: MARY E. KAVANAUGH AND NELSON KAVANAUGH v. NANCY BROWN AND WILLIAM A. BROWN
• Court: Texas Supreme Court

1 Tex. 481

MARY E. KAVANAUGH AND NELSON KAVANAUGH

v.NANCY BROWN AND WILLIAM A. BROWN

Supreme Court of Texas.

December Term, 1846.

Error from Washington District Court.

A writ which varies from the petition may be amended by the petition. Such amendments are within the exercise of a sound discretion by the court. [2 Tex. 225;3 Id. 261;5 Id. 130;7 Id. 468;16 Id. 45;24 Id. 302, 660.]

If the defendants have not answered when the defect in the writ is discovered, a new writ would doubtless be awarded; and after an appearance, if the amendment of a defective writ is calculated to surprise, sufficient time will be allowed to answer.

A married woman cannot make a contract by which she herself, or her separate property, will be rendered liable.

The act of 20th January, 1840, “regulating marital rights,” was intended to secure the separate property of the wife, and its object would be defeated if she could bind it by her separate contracts during the coverture.

The common law rule respecting the capacity of the wife to contract was not changed by our statute regulating marital rights. [28 Tex. 368;29 Id. 257.]

This suit was brought by the appellees against the appellants in the court below, upon a promissory note for $500, which was signed by both of the appellants. Process was served on the defendants, but at the first term of the court George W. Horton, an attorney of the court, as amicus curiæ, suggested a variance between the writ and petition, and moved that the writ be quashed. The court decided the writ was bad, but permitted it to be amended by the petition, to which a bill of exceptions was filed.

The defendants then pleaded several matters of defense jointly, and Mary E. Kavanaugh pleaded separately that she was a married woman at the time the note was executed, and was not capable in law of binding herself by the contract. The fact of her being a married woman, and the wife of the other defendant, was admitted; but the court instructed the jury that her being married, when she executed the note sued on, did not preclude the plaintiffs from recovering against her in this action; to which instruction the defendants excepted. The jury found a verdict against both defendants, and upon which judgment was rendered for the plaintiffs.

G. W. Horton, for plaintiffs in error, assigned two grounds of error, which are stated in the opinion of the court. In support of the first, he referred to the 8th section of the act establishing the powers and jurisdiction of the district courts. Acts 1st Congress, p. 201. To sustain the record, he cited 18 Johns. 167; Act of the 4th Congress, p. 1, adopting the common law, and to regulate marital rights; and the Act of the 5th Congress, p. 184, prescribing the mode of disposing of the property of married persons.

Gillespie and Taylor, for defendants in error.

No briefs filed.

LIPSCOMB, J.

The plaintiffs in error assign the following grounds as error, on which they ask the reversal of the judgment of the court below.

First. The court erred in permitting the plaintiffs to amend the writ by the petition.

Second. The court erred in its charge to the jury as set forth in the bill of exceptions.

From the record it appears that a motion was made before any answer was filed to quash the writ, on the ground that there was a variance between it and the petition, which motion was sustained and leave given to amend the writ by the petition. The defendants excepted to the decision of the judge in allowing the amendment, and then answered to the suit.

The objection was no doubt well taken in the district court, but under our statute of amendments it is believed that it was competent to allow the amendment of the writ by the petition, which was certainly the initiative step in the suit, and nothing has been more usual than to allow a subsequent mistake to be amended by something that...