38 La. Ann. 367 | La. | 1886
The opinion of the Court was delivered by
This action is brought by plaintiffs, wlio are judgment creditors of Geo. W. Thompson, against Ms wife,.Sallie E. Burns, to annul, as fraudulent sinralations, a special mortgage and subsequent ■elation en paiement made by Thompson to bis said wife, in fraud of Ms creditors.
The action is brought against the wife alone. The husband is not ■cited or made a party and no relief is asked against him.
Serious objections are urged against the sufficiency of the authorization of the wife to enable her to stand in judgment.
Article 118, C. P., says : “ When one sues a married woman for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by tlie judge to defend it alone.”
The suit was not brought against her and lier husband. There was no demand for the judge’s authorization. There was no allegation ■showing or pretense that the husband was absent or that he refused to authorize his wife.
The law is clear and this Court has distinctly hold that tlie judge cannot authorize the wife, when the husband is not absent and has not refused to give Ms authorization. Delacroix vs. Hart, 24 Ann. 141. Hence the judge’s authorization in this case was illegal and insufficient to enable tlie wife to stand in judgment.
It is claimed, however, that this defect.was cured by the appearance of the husband conjointly with the wife in the filing of an exception of Ms pendens. But we find no such appearance. It is inferred solely from the fact that the exception begins. “ Now come the defendants, etc.” No mention is made of the husband or of his authorizing the wife, and as he was not a defendant or a party in any mode, we see not how tlie mere use of a plural can be construed as including Mm.
The answer of the defendant wife, under which issue was joined and .all further proceedings had, was. filed exclusively in her own name, without reference, direct or indirect, to her husband. We tliink this •defect invalidates the whole proceeding.
The defendant called attention to the fatal defect of the proceedings by objecting to all evidence, on the grounds that she was a married woman, that her husband had not been joined or cited, that he was not absent and that the judge’s authorization was insufficient.
The objections were valid and should have been sustained.
Further objection was made on the ground that the husband was a-necessary party in his own right. As we shall remand the case, we mention it for the purpose of saying that we consider it a serious one, and that the dictum of certain decisions that in an action to annul a contract for fraud or simulation, it is not necessary to make the original debtor a party when the debt is reduced to judgment, is not free from doubt as to its correctness and rests on authority slighter than is generally supposed.
It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to the lower court, in order that the husband of defendant may be cited and for further proceedings according to law, plaintiff and appellee to pay costs in both courts thus far incurred.