Smith v. Smith, 18 Fla. 789

Smith v. Smith

18 Fla. 789 | Fla. | 1882

The Chief-Justice

delivered the opinion of the court.

This was a bill filed by appellant, who is a married woman, residing in Florida, against her’ husband, who is also a resident of this State. The bill is brought for the pur*794pose of obtaining a decree declaring certain real property heretofore conveyed to him declared to be and set apart to her as her separate estate and property, and authorizing her to sell, convey and dispose of the' same as she may deem proper. The alleged ground of such prayer is that the property was purchased with money which was the proceeds of her separate property in Virginia. The Chancellor decreed upon the bill, answer and testimony that she had failed to make out her case and dismissed the bill* whereupon she appealed.

It is the well established law and the universal practice pf the courts that a married woman cannot' maintain a suit in her own name, but must sue by her next friend. 1 Dan. Chy. Pr., 5 Am. Ed., 108; Story’s Eq. Pl., §§61, 63; 2 Vesey, Sr., 452; 5 Paige, 581; Wend., 357; 3 Paige, 440.

The only exceptions to the rule were in cases whei’e the husband had been banished, or had abjured the realm, or been transported for felony. Under an act of March 11, 1879, married women may be licensed and empowered by the Circuit Court to transact business in their own names, and to sue and be sued, as if they were unmarried. (McClellan’s Dig., 756.) This is the only law of this State authorizing suits by married women alone.

No objection was taken by the appellee (defendant) to the manner of bringing this suit, but we cannot, by our silence, pei'mit or endorse such a violation of well established law.

The Chancellor might have allowed an amendment, so as to have cured that difficulty, (3 Paige, 440,) and we may have the power to send the case back with instructions to allow the amendment, but, looking at the pleadings and testimony, wc do not think such a case is made as would warrant a decree granting the prayer of the bill.

The decree is affirmed.