69 P. 125 | Idaho | 1902
— This case is here for review from an order of the district court of Nez Perces county overruling a motion for a new trial. The complaint alleges: That the plaintiffs are husband and wife, and that J. W. Eozen is the sheriff of Nez Perces county, and the other defendants are sure
It will be observed that the complaint alleges that Mattie Lawrence McDonald was a married woman at the time of the commencement of this action, and Lad not been adjudged a sole trader. Section 5850 of the Devised Statutes says: “A married woman may become a sole trader by the judgment of the district court of the county in which she has resided for six months next preceding the application.” Section 5858 of our statute says: “When the judgment is made and entered and a copy thereof, with the affidavit provided for in the last section duly recorded, the person therein named is entitled to carry on the business specified in her own name, and the property, revenues, moneys and credits, so by her invested, and the profits thereof belong exclusively to her and are not liable for any debts of her husband; and she thereafter has all the privileges of and is liable to all legal processes provided for debtors and creditors, and may sue and be sued alone without being joined with her husband,” etc. With an allegation in the complaint that Mattie Lawrence McDonald was a married woman, and has not been adjudged a sole trader under the foregoing provisions of our statute, can she recover in this action under any condition of the pleadings? Harsh as it may seem, we think not. The statute points out the only way in which a married woman can engage in business in this state, and, if she engages in business without availing herself of this provision of the statute, she does so at her own risk, and cannot be heard to complain in an action for damages of the character complained of. She might, and, we think, could, recover in this action for any damages to her separate property with a proper allega
We find no error in the record, and the judgment of the lower court is affirmed, with costs to respondents.