Latshaw v. McNees

• Decision Date: 31 July 1872
• Citation: 50 Mo. 381
• Parties: HENRY J. LATSHAW et al., Defendants in Error, v. MARGARET A. MCNEES et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

50 Mo. 381

HENRY J. LATSHAW et al., Defendants in Error,

v.MARGARET A. MCNEES et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Kansas City Court of Common Pleas.

Twiss & Cook, for plaintiffs in error.

At the next term of the court after judgment Mrs. McNees and her husband, who had not been joined as defendant in this action, appeared and moved to set aside the judgment for the reason that the defendant, Mrs. McNees, was a married woman and could not be sued apart from her husband, for the reason that the suit did not concern her separate estate. This motion was supported by affidavit that the defendant, Margaret A. McNees, had been married for more than twenty years, and lived with her husband and their children at the time of the beginning of the suit and ever since. These facts were not controverted, and appear from the evidence taken at the trial as well as from the affidavit. This motion should have been sustained.

1. This action was commenced in April, 1869, after the act of February 6, 1868, went into effect. By that act it is provided

that “when a married woman is a party her husband must be joined with her in all actions,” except when the husband is plaintiff only and the wife defendant only, or when the wife is plaintiff and the husband defendant; that is, except only in actions between husband and wife; and the second section repeals all acts and parts of acts in conflict with this provision. (Sess. Acts 1868, p. 87; Wagn. Stat. 1001, § 8.)

2. This statute is not inconsistent with the mechanics' lien law.

( a) By that law an action is given against a married woman. (Gen. Stat. 1865, p. 768, § 8.) But it is expressly provided that the pleadings, practice, process and other proceedings shall be the same as in other civil actions, except as otherwise provided in the lien law itself. (Gen. Stat. 1865, p. 767, § 8.)

( b) By that law it is also provided that the parties to the contract shall, and all other persons interested may, be made parties, etc. (Gen. Stat. 1865, p. 767, § 9.) The act of 1868, passed subsequently, enacts that “in all actions” where the wife is a party the husband must be joined with her, and repeals all inconsistent laws. The proceedings to enforce a mechanic's lien are undoubtedly included in the provisions of the law of 1868, so that where the wife is a party to them her husband must be also.

3. Nor is this defect cured by the statute of jeofails.

( a) That act does not in any of its terms or provisions meet this case. (Sess. Acts 1867, p. 134; Wagn. Stat. 1036, § 19.)

( b) It is not perceived how it could very well meet such a case, as the statute of jeofails was passed in 1867, and the law requiring husband and wife to be joined, in 1868.

4. The act of 1868 leaves the matter as at common law, under which a feme covert could not be sued without joining her husband, and failure to make him a party was a fatal defect at all stages of the proceedings. (Co. Lit. 132 b, 1 Com. Dig. 219; id. 64; Marshall v. Rutton, 8 T. R. 545; Beard v. Webb, 2 Bos. & Pul. 93; 1 Bac. Abr. 734.)

5. The non-joinder of the husband could be taken advantage of at common law. ( a) By plea in abatement. (1 Com. Dig. 64; 1 Tidd's Pr. 635; 1 Chit. Plead. 477.) ( b) By writ of error coram nobis to correct the judgment as erroneous in point of fact. (1 Chit. Plead. 59; 2 Bac. Abr. 198; Rolles' Abr. 748-759; 2 Tidd's Pr. 1136-7; 2 Tidd's Pr. 1169; Callaway v. Nifong, 1 Mo. 223; Powell v. Gott, 13 Mo. 458; Whittelsey's Mo. Pr. 472, § 383.) ( c) Under the present practice, a motion to set aside the judgment takes the place of the writ of error coram nobis at common law. (Powell v. Gott, 13 Mo. 458; Stacker v. Cooper Circuit Court, 25 Mo. 403.) “But if the judgment is irregular, such as might be recalled by writ of error coram nobis, then the court may on motion correct the irregularity.”

Ewing & Smith, with A. A. Tomlinson, for defendants in error.

The court below did not err in overruling the motion to set aside the judgment for irregularity. It was a motion to amend the judgment, or to set it aside, made after the adjournment of the term at which it was rendered. The judgment was rendered at the June term, 1870, and the motion to set aside at October term, 1870; and the defendants not complying with the statutes in such cases, the court very properly overruled the motion for a review. (Gen. Stat. 1865, p. 681, § 16; id., § 13; 29 Mo. 343.)

ADAMS, Judge, delivered the opinion of the court.

This was an action on a mechanic's lien, brought against Nelson as contractor, and the defendant, Margaret A. McNees, as owner of the property, for materials furnished for the erection of a dwelling-house. Margaret A. McNees defended the action as feme sole throughout all the proceedings, including final judgment. Many technical points have been raised by the learned counsel for her, but none of them seem to be of sufficient importance to warrant a reversal of the judgment on account of any alleged error previous to the final judgment.

At the next term after final judgment, John C. McNees, as husband of the said Margaret A. McNees, together with his wife Margaret, appeared and filed a motion to set aside the judgment because the husband had not been joined with the wife, and filed affidavit that they were husband and wife and had been for twenty-five years. This motion was overruled, and the husband and wife excepted.

By the practice act, as amended in 1868 (Wagn. Stat. 1001, § 8), it is provided that “when a married woman is a party her husband must be joined with her in all actions except those in which...