69 Ind. 117 | Ind. | 1879
The appellee Lrusilla A. Lee sued the appellant, iu a complaint of two paragraphs, for the recovery of a certain sum of money alleged to be due her from the estate of the appellant’s intestate, George Shumaker, deceased. An answer and reply were filed, putting the case at issue, and a trial of the cause by a jury resulted in a verdict for said appellee, assessing her damages in the
In this court the appellant has assigned the following errors :
1. The complaint does not state facts sufficient to constitute a cause of action ;
2. The court below erred in overruling appellant’s motion for a new trial; and,
3. The court had no jurisdiction of the subject-matter of the action.
•1. The sufficiency of the complaint was not questioned in the circuit court, either by demurrer or by a motion in arrest of j udgment, but the objection thereto is presented for the first time in this court. This procedure is authorized by section 54 of the practice act, 2 R. S. 1876, p. 59; but it is settled that the assignment as error of the insufficiency of the complaint does not call in question the sufficiency of the paragraphs separately, but of the complaint as an entirety. It follows, therefore, that if either paragraph of the appellee’s complaint, in this case, stated facts sufficient to constitute a cause of action, the first alleged error would not be well assigned or available for any purpose, even if the other paragraph were wholly insufficient. Caress v. Foster, 62 Ind. 145.
In the first paragraph of her complaint the appellee Drusilla A. Lee alleged, in substance, that, about the year 1844, one Leah Casner, then the appellee’s mother, intermarried .with said George Shumaker, since deceased ; that, at the time of said marriage, the said Leah had, of her own separate estate, in her own possession, the sum of six hundred and fifty dollars in money; that, by an agreement then .and there made by and between the said Leah and her said husband, George Shumaker, the said Shumaker
The second paragraph of the complaint differs from the first paragraph only in this, that it is alleged in said second paragraph that the said George Shumaker received the said sum of money from his wife, the appellee’s mother, the said Leah Shumaker, upon his agreement and promise to pay the same, with six per cent, interest thereon, to the appellee Drusilla A. Lee, upon her arrival at the age of twenty-one years; that afterward the said appellee had become twenty-one years of age, and had afterward intermarried with her coplaintiff, the said George Lee: hut that the said sum of money, with the accumulated interest thereon, had not been paid to the appellee Drusilla A. Lee, either by said George Shumaker in his lifetime, or by his administrator since his death.
In both of the paragraphs of the complaint, it is distinctly alleged that the sum of money mentioned therein, at the time of the marriage of said Leah Casner with appellant’s intestate, George Shumaker, in the year 1844, was the
It seems to us that this position is well taken. By the common law, the personal estate and money owned and possessed by a feme sole at the time of her marriage, by virtue of her marriage and upon the happening of that event, at once became and were the absolute property of her husband. At the time of the marriage of said Leah Casner with the appellant’s intestate, George Shumaker, in the year 1844, the common law was the law of this State on the subject now under consideration. It is clear, therefore, that, under the allegations of each paragraph of appellee’s complaint, the sum of money mentioned therein, by the law of this State in 1844, was the money of said George Shumaker, and not of his wife, Leah Shumaker; and that the agreement and promise counted upon in each paragraph were his naked agreement and promise to pay his own money, and not the money of his wife, to said appellee. Such agreement and promise, by the law in force at the time, were invalid and of no binding force, and constituted no cause of action. Miller v. Blackburn, 14 Ind. 62.
The common law rule, as we have stated it, whereby the personal estate and money held and possessed by a feme sole in her own right, at the time of her marriage, became
Eor the reasons given, we are of the opinion that the complaint of the appellee Drusilla A. Lee, in this case, did not state facts sufficient to constitute a cause of action. This conclusion renders it unnecessary for us to consider or decide any question arising under either of the other alleged errors.
The judgment is reversed, at the appellees’ costs, and the cause is remanded for further proceedings not inconsistent with this opinion.