Von Schrader v. Taylor
| Decision Date | 17 June 1879 |
| Parties | OLIVIA VON SCHRADER, Respondent, v. WILLIAM C. TAYLOR ET AL., Appellants. |
| Court | Missouri Court of Appeals |
1. Where there has been no manifest abuse of the discretion of the trial court in allowing an amendment of a petition to correspond with the proofs, the appellate court will not interfere.
2. It is not essential, in ejectment, to specifically allege that the holding over was the separate act of the wife, where the defendants, husband and wife, were living separately, though the dispossession complained of was her sole act, and judgment is properly rendered against both.
3. Where the husband is sued in ejectment, and the wife is, at her own request, made a co-defendant, as a feme sole, the husband appearing as her attorney, coverture not being disclosed until brought out in evidence on the trial, if the defence of coverture is not raised in the manner prescribed by law, and no motion in arrest is made, the appellate court will not pronounce the judgment void as being against a married woman.
4. Execution may, in some cases, be issued against a feme covert.
APPEAL from St. Louis Circuit Court.
Affirmed.M. F. TAYLOR, for appellants: This was a suit in trespass and ejectment, involving a tortious act, and the wife could not be joined as a party with the husband without allegation or proof of separate act of trespass.-- Meegan v. Gunsollis, 19 Mo. 418; Pash v. Hopkins, 2 Bailey, 44; Estill et al. v. Fort, 2 Dana, 240; McKown et al. v. Johnson, 2 McCord, 254.
GLOVER & SHEPLEY, for respondent: The court may at any time before final judgment, in furtherance of judgment amend any record, pleading, etc. Wag. Stats. 1034; Chauvin v. Lownes, 23 Mo. 223; Martin v. Martin, 27 Mo. 227; Green v. Gallagher, 35 Mo. 226.
This is an action of ejectment brought against the defendants, except Mary L. T. Taylor, who appeared by her counsel and at her request was made a party defendant. She at first filed a separate answer, but afterwards joined with the other defendants in a general denial. It appeared that in August, 1872, William C. Taylor and wife conveyed the land in dispute, by deed of trust, to secure indebtedness, and it was through this deed of trust and sale thereunder that the plaintiff claimed. Afterwards, William C. Taylor conveyed the land to Marcus A. Wolff as trustee of the wife of the grantor, William C. Taylor. It appeared that William C. Taylor and his wife were living apart from each other, and that at the time this suit was brought William C. Taylor was not in possession or living upon the premises, though his wife was. Upon the trial, the defendants moved for judgment upon the ground that the property described in the petition was different from that as to which possession was proved. The plaintiff was allowed, against objection, to file an amended petition, and to this the defendants answered by a general denial. Under these pleadings the same evidence was offered as before, and in a matter of description the plaintiff was again permitted to amend. Judgment was rendered in favor of Wolff, but against all the other defendants.
The matter of setting down the case for hearing on the 25th of March, 1878, after it had once been set for hearing on the seventh day of January, 1878, pertained to the discretionary power of the trial court in the conduct of its own business. So, in granting leave to amend twice, in order that the description of the property might exactly conform to the proof, there was no error. Wag. Stats. 1034, sect. 3.
It is contended that the judgment against William C. Taylor was erroneous, as the evidence showed that he had not been in possession, and that, though his wife was in possession, there was no allegation or testimony tending to show any separate act of hers which authorized the joinder of her husband. It is settled that where at the time charged the husband and wife were in possession together, she should not be joined as defendant in ejectment, since the wrongful act is that of the husband. Meegan v. Gunsollis, 19 Mo. 417; Hunt v. Thompson, 61 Mo. 154. To authorize a judgment against the wife, there must be evidence tending to show that the ouster, dispossession, or holding over is the act of the wife. The rule is, that as to torts committed by the wife during coverture, husband and wife must be jointly sued. Here the testimony tended to show, not any common possession by the husband and wife, as in the cases just cited, but that the two were not living together; that William C. Taylor had not been on the property since the 1st of February, 1877, and that the act complained of was the act of his wife. In ejectment the statute prescribes a simple form of declaration, and it is not essential to specifically allege that the holding over was the separate act of the wife. Though it is remarked in Meegan v. Gunsollis, that the petition alleged no such separate act, it is not said that such an allegation is essential. The difficulty there was that the finding showed, as a fact, that the two were in possession together when the suit was brought. Here, the judgment conformed to the evidence, and was properly rendered against husband and wife. The petition, moreover, would in any event be good after verdict.
It is further objected that the judgment against Mary L. T. Taylor was contrary to law, as upon the trial there was evidence showing that she was a married woman whose husband was sued as a defendant; that as...
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... ... Likewise, in Von Schrader v ... Taylor, 7 Mo. App. 361, it is held that, where a woman is made a defendant as a feme sole and coverture with her codefendant was not disclosed ... ...
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Gruen v. Bamberger
...must be taken and understood with reference to the particular facts in judgment. There are, as pointed out by HAYDEN, J., in Von Schrader v. Taylor (7 Mo. App. 361), cases in which a judgment, and even an execution against a married woman, is permissible. Our supreme court has never held th......
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