89 Ky. 577 | Ky. Ct. App. | 1890
dbuvbrkd this opinion' op this court.
This is an effort to enforce a judgment against 1 lie-separate property of a married woman, rendered when she was such feme covert. The lower court, upon de murrer to the petition, dismissed the action.. This court, upon appeal, said, in substance, that the judgment sued upon might, or might not, be void. If based upon her tort, or a contract executed by her dwm sola, or rendered when she was a feme sole, it would not be void; but if founded upon a claim of such a character as would ordinarily support only an ordinary action, then, as it would be void as to her, so would any judgment against her upon it. This-
As the character of the claim upon which the judgment had been rendered did not appear from the petition, this court reversed the judgment, dismissing it, and remanded the cause for further preparation. The issues having been formed by proper pleading, and a part of the record of the suit in which the judgment sought to be enforced was rendered being in evidence, the lower court rendered a decree enforcing the judgment against the property of the feme covert, and she has appealed.
The record of the old suit, filed in this one, sufficiently identifies it as the action in which the judgment sued upon was rendered. The pleadings in this suit give ’ the style of the action and the court in which the judgment was rendered, and the record in evidence conforms thereto. It shows also that the claim was not of a character authorizing the personal judgment against the female appellant, who was then a married woman, and the question is, therefore, presented, whether she can now resist its enforcement against her property upon the ground that it is void by reason of her coverture when it was rendered. The opinion upon the former appeal substantially decided the question. It is contended, however, with earnestness and ability, that it must be treated as erroneous only ; that it can not, therefore, be assailed collaterally, and the party can obtain relief from such a judgment only by vacating it by a direct proceed
It is equally well settled that a void judgment will not support further proceedings; so the question is at last, is this judgment void, or merely erroneous?
Generally, a feme covert has no personality in law. She is not recognized by it, save in a few excepted cases, so that a personal judgment can be taken against her. The contracts of an infant are, in general, voidable only, while those of a married woman are void. True, she may, under certain circumstances, bind her separate estate, but not herself personally, the reason being that she has no personal identity in law. It • does not follow, because, as an exceptional case, a personal judgment may go against her for her tort, or
We are aware there is a conflict of authority in this country upon this question, but the views above advanced seem to us not only supported by reason, but we know they are sustained by such high authority-as the Supreme Courts of Pennsylvania, Missouri, and other States. ’.In this case the rights of no inno
In the case of Green, &c., v. Page, 80 Ky., 368, notes were given by a husband and wife for an interest in a hotel building. In an action by the assignees against .the assignors, it was claimed that the failure to take a personal judgment upon the notes against the wife .absolved the assignors from liability; but this court said that such a judgment would have been a nullity. The views of this court, as given in the opinion upon the former appeal of this case (and as now again stated); have since been followed in the case of Stevens, &c., v. Deering, &c., 10 Ky. Law Rep., 393. It is averred in the reply, and not denied, that in the action in which the judgment now sought to be enforced was rendered, the appellant and her husband ayailed themselves of all defenses, both legal and equitable. This is a sort of legal conclusion of the pleader. It is not averred that she, in that action, set up her coverture, and that the court then decided whether such was- her status, and passed upon the question, nor does this otherwise appear.
The original appeal is sustained, and judgment below reversed, with directions to dismiss the action.
This disposes of the cross-appeal, and it is dismissed.