McDowell v. McDowell

• Decision Date: 02 June 1917
• Docket Number: 1915
• Court: North Dakota Supreme Court

164 N.W. 23

37 N.D. 367

ISABELLA MCDOWELL v. SAMUEL McDOWELL

No. 1915

Supreme Court of North Dakota

June 2, 1917

Rehearing denied July 30, 1917.

Appeal from the District Court of Eddy County, Honorable C. W Buttz, Judge.

Affirmed.

S.E Ellsworth, for appellant.

A statute relied upon to afford a right of action in derogation of the common law will be strictly construed.

Statutes enabling the wife to sue and to be sued as a feme sole do not authorize either husband or wife to bring an action against the other. Comp. Laws 1913, § 4411; 21 Cyc. 1518; Alward v. Alward, 15 N.Y. Civ. Proc. Rep. 151, 2 N.Y.S. 42; McKee v. Reynolds, 26 Iowa 582; Jones v. Crosthwaite, 17 Iowa 393; Heacock v Heacock, 108 Iowa 540, 75 Am. St. Rep. 273, 79 N.W. 353; Decker v. Kedly, 79 C. C. A. 305, 148 F. 681; Perkins v. Blethen, 107 Me. 443, 31 L.R.A.(N.S.) 1148, 72 A. 574.

Plaintiff and defendant were equally and jointly liable for furnishing the family with the necessaries of life. Comp. Laws 1913, §§ 4410, 4414, subd. 2; Banner Mercantile Co. v. Hendricks, 24 N.D. 16, 138 N.W. 993.

A trial court, in charging the jury, must cover the law of the case at least in a general way, to the end that the jury may receive reasonable aid and enlightenment upon the essential and controlling question in controversy. Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224.

Maddux & Rinker, for respondent.

"Jurisdiction of valid judgments and decrees ceases with the close of the term at which they are given, unless authority over them is retained by motion or other appropriate proceedings." Huffman v. Huffman, 47 Ore. 610, 114 Am. St. Rep. 943, 86 P. 593.

"The individual property of a married woman, not growing out of the marriage relation or the proceeds thereof, is not a proper subject for adjudication in an action by her for divorce." Taylor v. Taylor, 54 Ore. 560, 103 P. 524.

The wife may sue the husband for rent of her separate property, or maintain suit against him for other causes, the same as against a stranger. Niehaus v. Niehaus, 141 A.D. 251, 125 N.Y.S. 1071; Taylor v. Taylor, supra; Heintz v. Heintz, 56 Tex. Civ. App. 403, 120 S.W. 941; Schultz v. Christopher, 65 Wash. 496, 38 L.R.A.(N.S.) 780, 118 P. 629; Rice v. Crozier, 139 Iowa 629, 130 Am. St. Rep. 340, 117 N.W. 984; Heacock v. Heacock, 108 Iowa 540, 75 Am. St. Rep. 273, 79 N.W. 353.

The husband must support himself and wife out of his property or by his labor. Comp. Laws 1913, § 4409; De Brauwere v. De Brauwere, 144 A.D. 521, 129 N.Y.S. 587; Sodowsky v. Sodowsky, -- Okla. --, 152 P. 390; Taylor v. Taylor, 54 Ore. 560, 103 P. 524; Huffman v. Huffman, supra.

OPINION

ROBINSON, J.

This action is based on a written lease of certain lands dated, April 3, 1906, and signed by the plaintiff and the defendant. The plaintiff sues to recover rent for four years at $ 150 a year, and interest. The defendant appeals from a verdict and judgment for $ 612.50 and from an order denying a new trial. The defense is that the matters alleged in the complaint were adjudicated in an action between the same parties for a divorce and that in said action all matters here in difference were duly adjudicated; also, that when this action was commenced the parties were husband and wife, and that the wife had no legal right to maintain this action against her husband. To this latter defense the statute gives a plain answer. It is this: "Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which the other might, if unmarried. The wife after marriage has with respect to property, contracts and torts the same capacity and rights and is subject to the same liabilities as before marriage." Comp. Laws 1913, § 4411. Under this statute the wife had a perfect right to lease her land to her husband, and she must have a legal right to maintain an action to recover the rents. It were absurd for the law to give a person a right to make a legal contract, and to deny a legal remedy by due process of law to enforce the contract. That point is not at all questionable or debatable.

In the divorce action, judgment was entered in June, 1911. This action was then pending, and it was brought to trial before Judge Coffey in March, 1913; and while this case was pending before Judge Coffey, viz., on March 18, 1913, he made a document purporting to amend the divorce judgment which had been entered two years previously. The...