McDonald v. Rozen

• Citation: 69 P. 125,8 Idaho 352
• Parties: McDONALD v. ROZEN
• Decision Date: 17 May 1902
• Court: United States State Supreme Court of Idaho

69 P. 125

8 Idaho 352

McDONALD v. ROZEN

Supreme Court of Idaho

May 17, 1902

MARRIED WOMEN-SOLE TRADER-SEPARATE PROPERTY.-A married woman cannot engage in business or recover prospective profits by reason of loss of business, although the money invested in such business was her separate property before marriage, unless she be adjudged and declared a sole trader under the provisions of the statute.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Affirmed, with costs to respondents.

Benjamin F. Tweedy, for Appellants, cites no authorities upon the point decided by the court.

McFarland & McFarland, for Respondents.

We contend that Mrs. McDonald cannot maintain this action because her complaint shows that she was not a sole trader. (Idaho Rev. Stats., sec. 5858.)

STOCKSLAGER J. Quarles, C. J., Sullivan, J., concurring.

OPINION

STOCKSLAGER, J.

This case is here for review from an order of the district court of Nez Perces county overruling a motion for a new trial. The complaint alleges: That the plaintiffs are husband and wife and that J. W. Rozen is the sheriff of Nez Perces county, and the other defendants are sureties on his official bond. That the plaintiff Mattie Lawrence McDonald, with her separate funds and separate and individual estate, purchased the personal property levied upon by the sheriff, and on March 25, 1899, commenced for herself and as her separate and individual business the keeping of a restaurant and a lodging-house, and was engaged in the said business on the tenth day of November, 1899. In the bill of sale conveying the said personal property to the said Mattie Lawrence McDonald it is not recited nor stated that the rents and profits thereof shall be her separate and individual property, and neither was the said Mattie Lawrence McDonald a sole trader under the statutes of Idaho but the said personal property was the separate and individual property of Mattie Lawrence McDonald, and always was, from the time she purchased the same and until she sold it; and her husband, S. F. McDonald, never had any right, title, or interest in the said personal property, and only had an interest in the rents and profits of the said business as the husband of Mattie Lawrence McDonald, and as a member of the community. That plaintiffs were clearing daily a net profit of ten dollars in the said business on and before the tenth day of November, 1899, and could have cleared a net profit of ten dollars per day from the 10th of November, 1899, to the 19th of April, 1900. Then follows an allegation that S. F. McDonald, before he married plaintiff, Mattie Lawrence McDonald, became indebted to W. J. Van Schuyver & Co., and executed a note for said indebtedness, due one day after date, and also secured the same by a mortgage, on worth of personal property, which said property belonged to said S. F. McDonald; and when and while the said Van Schuyver & Co. held the said mortgage as security for the said note, and when and while the said security was valuable, and had not become valueless, on the tenth day of November, 1899, the said company commenced an action against said S. F. McDonald on said note in the district court of Nez Perces county, and at the same time caused a summons to issue against the said S. F. McDonald, and a writ of attachment authorizing the sheriff of said county to attach his personal property. That said writ of attachment was, on the tenth day of November, 1899, by said J. W. Rozen, as sheriff, levied upon the property belonging exclusively to Mattie Lawrence McDonald, and the said sheriff then and there took the said property into his possession, closed the lodging-house and restaurant, and totally destroyed and ruined the said business. That before said writ of attachment was levied, said Mattie Lawrence McDonald forbade the sheriff to levy said writ of attachment on said property, and told him that it was her own separate and individual property; that her husband, S. F. McDonald, had no interest therein whatever, but, notwithstanding, the said sheriff maliciously, wrongfully, and unlawfully attached said property. That the said business was ruined and destroyed by reason of said...