50 Mo. 381 | Mo. | 1872
delivered the opinion of the court.
This was an action on a mechanic’s lien, brought against Nelson as contractor, and the defendant, Margaret A. McNees, as owner of the property, for materials furnished for the erection of a dwelling-house. Margaret A.. McNees defended the action as feme sole throughout all the proceedings, including final judgment. Many technical points have been raised by the learned counsel for her, but none of them seem to be of sufficient importance to warrant a reversal of the judgment on account of any alleged error previous to the final judgment.
At the next term after final judgment, John C. McNees, as husband of the said Margaret A. McNees, together with his wife Margaret, appeared and filed a motion to set aside the judgment because the husband had not been joined with the wife, and'file'd an affidavit that they were husband and wife and had been for
By the practice act, as amended in 1868 (Wagn. Stat. 1001, § 8), it is provided that “ when a married woman is a party her husband must be joined with her in all actions except those in which the husband is plaintiff only and the wife defendant only, or the wife plaintiff and the husband defendant.” At common law the husband had to be joined in all actions against the wife, and this statute is only declaratory of the common law. The wife is not sui juris, and the law requires the husband to be brought before the- court to protect her interest. An action under the mechanics’ lien law is no exception to this rule. Nor does the statute of amendments cure this error. (Wagn. Stat. 1036, § 19.)
Prior to the act of 1868, above referred to, a married woman might have been sued alone in respect of her separate property, under the statute of 1865 (Gen. Stat. 1865, p. 651, § 8), and if in such case she appeared by attorney, the error was cured by verdict. But the above statute of 1868 is in conflict with the statute of 1865, and she cannot now be sued alone except when the husband sues her.
As this error does not appear upon the face of the proceedings, it can only be brought to the attention of the court by a proceeding in the nature of a writ of error coram nobis. The usual way is by motion supported by affidavits or evidence. If the motion is sustained, the husband and wife are allowed to make any defense to the merits they may have, and the case is retried. This motion is allowed at any subsequent term after final judgment. I know of no statute of limitations against such a motion. The statute of limitations in regard to irregularities applies to such as appear on the face of the proceedings, and not to such as are brought before court by evidence aliunde, as in this case. (See Powell v. Gott, 13 Mo. 458; Ex parte Toney, 11 Mo. 661; Groner v. Smith, 49 Mo. 318; Ex parte Page, id. 291.)
The judgment must be reversed and the cause remanded, to be proceeded in according to the rulings here laid down.
