37 La. Ann. 821 | La. | 1885
Lead Opinion
On Motion to Dismiss.
The opinion of the Court was delivered by
The ground relied on, is that the plaintiff, who is a married woman, has brought this suit and appealed from the judgment dismissing it, without authorization, either from the husband or from the Court.
The objection to this want of authority was not pleaded in limine, or before trial on the merits of the case, which were put at issue by an answer. It is urged on appeal, for the first time.
The policy of the law in requiring marital, or when it is refused, or -cannot be obtained, judicial authorization in suits by or against married women, is double, not only, for the prevention of ill advised litigation ; but also for the protection of the other party to the suit, who has a right to claim that the judgment to bo rendered be binding on the wife.
The facts in 22 Ann. 204, are not analagous to those of the present case. Tiie record did not show there as it does here, that the husband had attended the trial.
In a subsequent ease, our immediate predecessors, reversing the first judgment therein of the previous court, by which the ruling in 22 Ann., had been made, and somewhat departing from it, held that the signing of the appeal bond by the husband as agent of his wife might not of itself suffice as his authorization, but that his active agency in the suit was proof that it was prosecuted with his approbation and assistance, .and coustinnted authorization. Jones vs. Henry, Manning’s Unrep. C. p. 65; O. B. 46, fol. 360.
In a more recent case, the present court held that the signature of •the appeal bond by the wife’s counsel, as attorney for the husband in the absence of proof of special authority to him, to that end,—was insufficient to justify the deduction of marital authorization to prose-cute the appeal. The opinion strongly implies that, had the special power been shown, the appeal woidd have been sustained. Gibson vs. Hitchcock, 35 Ann. 1201; O. B. 57, fol. 815, N. R.
After a snivey of all the authorities bearing on the subject, the rule may fairly be announced to be : Whenever the record shows that the litigation is sanctioned by the husbaud, and however this appears, the right of the wife to stand in court for further prosecution or defense should be recognized.
In the present instance the denial of marital authorization was not at all urged in the lower court, either before or after the joining of issue. Had it been that plaintiff failed to adduce proper evidence of it, the case would have presented a quite different feature.
The judgment appealed from is not one of dismissal for want of such authority. It is a judgment which passes on the issues presented on •the merits of the contention.
But it is apparent, not only that the point was not raised below, but also that the husband attended in person the trial of the case before thelowei court, and sanctioned the appeal, signing- with his wife the bond furnished to perfect it. Clearly then, the litigation is approved by the husband and the judgment to be rendered on the merits will conclude: her.
To dismiss the appeal would serve no useful purpose.
Interest reipublica ut sit finis litium.
Motion overruled.
Opinion on the Merits
On the Merits.
Plaintiff is one of the heirs of her father, John B. Schiller, who died in 1869, leaving a valuable estate belonging to the community subsisting between himself and his surviving wife. His succession was duly opened and Mrs. Schiller, in 1871, obtained a judgment recognizing her as owner of the undivided half of the property as rvidow in community and as usufructuary of the other half during her widowhood. Under this judgment of a competent court, she held and dealt with the estate until January, 1881, when this Court rendered a decree annulling and setting aside said judgment and recognizing the right of' the heirs to enforce a liquidation and partition of their father’s succession.
Amongst the property of Schiller were thirty consolidated bonds of the city of New Orleans for $1000 each, running to maturity.
Plaintiff, in the present suit, averring her ownership, as heir, of one-sixth of said bonds, and alleging- that they are in possession of defendant and that he acquired the same in 1878 from Mrs. Schiller, well knowing that they belonged to the succession of J. B. Schiller, and that Mrs. Schiller was without right to dispose of petitioner’s interest therein, prays for judgment recognizing her ownership and ordering defendant to restore to her the said bonds to the extent of her said interest.
It might be sufficient answer to the action, in its present form, to say that the evidence shows that the bonds were not in the possession of defendant, but liad been disposed of long prior to the institution of' this suit.
But, aside from this, the bonds were negotiable and not due, and were passed to Bier upon a valuable consideration by the holder and
These cases emphatically hold that nothing less than actual or constructive notice of defective title, amounting to mala jides, can defeat, the transferee for value.
Plaintiff relies upon two circumstances, as destroying the application of the foregoing principles in this case:
1st. That the bonds, though not themselves matured, had attached tpthem certain interest coupons which were past due and not paid, which, it is claimed, should operate constructive notice and destroy their negotiability. The proposition has no force in reason and has been pointedly ruled in an adverse sense very recently. Railway Co. vs. Sprague, 103 U. S. 756.
2d. It was charged that defendant knew that Mrs. Schiller held these bonds in her capacity as representative of the succession of Schiller.
.We have closely studied the evidence and it convinces us, as it did the judge a quo, that no such knowledge is brought home to him.
The case of Stern Bros. vs. Bank, 34 Ann. 1119, and those cited from 31 Ann. 215, 32 Ann. 1250, 21 Wall. 143, 96 U. S. 193, 97 U. S. 371, and 99 II. S. 434, relied on by plaintiff, have received our careful attention, hut we find them inapplicable to this case.
Judgment affirmed.
