Cazalas v. Rodayt

35 Ala. 256

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

Under the rule laid down in Dickens v. Oliver, 29 Ala. 528, there are many actions “for the recovery of land, or possession thereof,” which, under section 2131 of the Code, must be prosecuted against husband and wife.

In the same case, we laid down a rule in relation to pleading in such cases, which, when applied to suits of this kind, will only require that the marginal statement in the complaint, of the parties to the suit, shall disclose that the suit is prosecuted against husband and wife. This, we, in effect, then held, and now repeat as applicable to actions of this kind, — is equivalent to an averment that the wife has an interest in the defense of the action, or in the lands sued for. If it turn out in proof that she has no interest, no judgment should be rendered against her.

Conforming to the rules declared in Pickens v. Oliver, supra, we hold that in the state of this record — the question being raised only on error — we must presume that the female defendant had “ an interest in the subject-matter of the suitthat the suit did not relate to her estate made separate by law; and that she was rightly joined as a defendant.

Indulging these presumptions, the law required that the wife should be joined as a defendant, and there was no error in rendering judgment against her. — Code, § 2131; Pickens v. Oliver, supra.

"We need not now decide how such judgment is to be enforced against a defendant who is a married woman. See Code, § 2432; Tidd’s Practice, pp. 194, 447, 1026, 1114, 1115; Ex parte Deacon, 5 Barn. & Ald. 759.

Affirmed.