Childress v. Mann & Co.

Jun 15, 1858
Reporters:
Before:
Walker
WALKER, J.

The complaint in this case does not show a substantial cause of action against the female appellant; consequently, the judgment must ‍​​​‌​​‌‌​‌​‌​​‌​​‌‌​‌​‌​‌‌​‌‌​​​​​​​‌‌​​‌‌​‌‌‌‌​‌‌​​‌​‌​​​‌‌‌​​​​​​‌‌‌​‌​​‌​‌‌​‌​​​‌​‌‌‌​‌‌‌‌‌​​‍be reversed, notwithstanding it was rendered upon a default, and there was no objection in the court below.—Blount v. McNeill, 29 Ala. Rep. 473; Stewart v. Goode & Ulrick, 29 Ala. Rep. 476.

[2.] The marginal description of the parties states, that the female plaintiff‘is the wife of her ‍​​​‌​​‌‌​‌​‌​​‌​​‌‌​‌​‌​‌‌​‌‌​​​​​​​‌‌​​‌‌​‌‌‌‌​‌‌​​‌​‌​​​‌‌‌​​​​​​‌‌‌​‌​​‌​‌‌​‌​​​‌​‌‌‌​‌‌‌‌‌​​‍co-plaintiff. The first count of the complaint is upon an account. A married woman cannot contract an account, during her coverture, for which she can be personally proceeded against. Marquis and Wife v. Gibson, 29 Ala. 668.

[3.] The second count is for goods, wares and ‍​​​‌​​‌‌​‌​‌​​‌​​‌‌​‌​‌​‌‌​‌‌​​​​​​​‌‌​​‌‌​‌‌‌‌​‌‌​​‌​‌​​​‌‌‌​​​​​​‌‌‌​‌​​‌​‌‌​‌​​​‌​‌‌‌​‌‌‌‌‌​​‍merchandise, sold to the defendants, which were articles of comfort and support of the household, suitable to the degree and condition in life of the family of the defendants. No cause of action can exist against a married woman, for such articles as ‍​​​‌​​‌‌​‌​‌​​‌​​‌‌​‌​‌​‌‌​‌‌​​​​​​​‌‌​​‌‌​‌‌‌‌​‌‌​​‌​‌​​​‌‌‌​​​​​​‌‌‌​‌​​‌​‌‌​‌​​​‌​‌‌‌​‌‌‌‌‌​​‍are described in the complaint, supplied during the coverture, unless she has a separate estate.—Code, § 1987; Durden and Wife v. *208McWilliams & Smith, 31 Ala. R. 438. The second count does not aver, that the married woman who is a defendant had any separate estate, and, ‍​​​‌​​‌‌​‌​‌​​‌​​‌‌​‌​‌​‌‌​‌‌​​​​​​​‌‌​​‌‌​‌‌‌‌​‌‌​​‌​‌​​​‌‌‌​​​​​​‌‌‌​‌​​‌​‌‌​‌​​​‌​‌‌‌​‌‌‌‌‌​​‍therefore, fails to show a substantial cause of action against her.

The judgment of the court below is reversed, and the cause remanded.