12 S.C. 592 | S.C. | 1880
The opinion of the court was delivered by
The complaint was dismissed by the Circuit Court, on the ground that the defendant was a married woman, and that her husband was not joined as defendant.
The objection of the non-joinder of the husband of the defendant was not taken by either .demurrer or answer, and is therefore waived, unless it can be made to appear that such defect is material to the question whether the complaint state facts sufficient to constitute a cause of action. Code, § 171. It is necessary, therefore, in order to sustain the judgment below to establish one of the two propositions — that a married woman cannot bind herself by a contract, or that a judgment cannot be recovered in any case against a married woman without joining her husband.
There are cases in which a judgment may be recovered against a married woman without the joinder of her husband as defendant, as provided for in Section 137 of the code, so that it cannot be affirmed that a judgment recovered against a married woman without the joinder of her husband is necessarily erroneous. The provisions of tire General Statutes that the husband shall not be liable for the debts contracted by the wife, except in a particular case of her necessary support, places the husband in the position of a formal and not a substantial party to suits against the wife on her individual contracts other than her necessary support, which is the nature of the present action, and failure to take such objection by demurrer or answer is a waiver of such objection.
The judgment must be set aside and a new trial granted.
New trial granted.
