Eckerson v. Vollmer

11 How. Pr. 42

• Court: New York Supreme Court
• Decided: March 15, 1855
• Status: Published

Opinion

Rockwell, Justice.

There is no foundation for this motion. In an action against husband and wife, service of process on the wife, is only necessary where the proceeding is against her in respect to her separate estate, in which case the husband is only a nominal party. In other cases, the husband, upon being served, is bound to enter a joint appearance and put in a joint answer for himself and wife. (Leavitt agt. Cruger, 1 Paige, 421; 3 Chitty's Gen. Pr., 263.)

In this case, neither husband nor wife could have answered separately without being authorized to do so by the order of the court, and no reason has been shown why the wife should have been allowed to put in a separate answer. The only interest which she had in the premises affected by the judgment, was her inchoate right of dower.. This kind of interest results from the marital relation, and does not belong to the wife as her separate estate. The wife is deemed, in law, to be under' the protection, as well as under the power of her husband. It was his duty, in this case, to have put in a suitable defence for his wife, and he is presumed to have done so until the contrary is shown. Indeed, if he had successfully defended himself, such defence would necessarily have enured to the benefit of his wife. All of her interest in the premises was a mere incident to his. It is not shown that she now proposes to put in a defence upon any different ground from that upon which the action has already been defended.

Motion denied.