22 Tex. 276 | Tex. | 1858
The court cannot indulge in any presumptions against the fairness and sufficiency of the acknowledgment of service, as it is signed by both husband and wife, and is sufficient, on its face, to authorize proceedings against them.
This court has gone far to protect the rights of married women, and to shield their separate property from waste, whenever the authority of the court has been invoked in a proper case. But this court cannot go to the romantic length of indulging the presumption, that a husband, in any case, will commit a fraud upon his wife, by bringing her into court without her knowledge or consent, or that he will collude with others to her injury. If presumptions were to be indulged, we would rather presume that affection and confidence exist between husband and wife, and that the husband will protect the wife in her interests, rather than do her wrong.
If this case had been contested in the court below, the petition would have been held insufficient, in its allegations, to entitle the plaintiff to a judgment against the separate property of the wife. And if the judgment had been simply a judgment by default, it would be reversed by this court, as to the present plaintiff in error, because the petition does not state a good cause of action against her. As to the sufficiency of the petition to charge the wife’s separate property, see the case of Brown and another v. John Ector and wife, 19 Tex. Rep. 346.
But in the present ease, there was no contest in the court below; and the judgment shows, although it is, for the most part, in the usual form of a judgment by default, that in point of fact, it was rendered upon an understanding between the parties. It recites that, by agreement between the parties, execution shall be stayed for six months. The judgment is also somewhat unusual in its form, in another respect. It provides, that if there shall not be sufficient community property of the defendants, or separate property of the husband, to satisfy the
This form of judgment, taken in connection with the agreement for a stay of execution, makes it reasonably certain, that the judgment was entered upon an understanding between the parties. It may be that all this was done without the knowledge of the wife, the present plaintiff in error; but there is no proof of it, and we cannot presume it.
In the case of Hutchinson v. Owen, 20 Tex. Rep. 287, the judgment was entered as a judgment by default; but in conclusion it stated, as does the judgment in this case, that by agreement between the parties, execution should be stayed until the next term. This court held that the recital showed that the parties were in court, and recognized the judgment; and because it so appeared, that the parties recognized the judgment, it was affirmed, although the original petition set forth no cause of action, and there had been no service of an amended petition, in which alone the cause of action was set forth. ,
There can be no doubt that errors might be committed, or defects in proceedings might exist, which would not be cured by such a quasi consent to a judgment, as will be inferred from a stipulation for a stay of execution.
We do not wish to be understood, as being disposed to favor loose proceedings, in cases where the rights of married women are involved, and where the effort is made to charge their separate property. In suits to subject their separate property, the statute provides, that the proof shall be satisfactory to the presiding judge. But this provision of the law cannot be construed to mean, that a jury must be empanneled, and that the judge and the jury must hear the evidence. It only means, that the courts must extend to married women, the full protection of the law, when they invoke it. It does not take away from the married woman the right to make compromises, and to waive errors in proceedings against her.
We see no sufficient reason, in this case, to distimb the judgment ; and we have said thus much, only because the case be
Judgment affirmed.
