Evans v. Lipscomb

28 Ga. 71

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

The only question in this case is this : If an action be pending against a single woman, and she marry, can a husband be made a party by scire facias ?

Our brother Bull decided that he could not; and he had the authority of this court for so holding.

Mr. Chitty says, “if she,” (a feme sole,) “ marry, pending an action against her, it will not abate, but the plaintiff may proceed to execution without noticing the husband.” 1 Chitty’s Pleadings, 48; 5th Amer. Ed., and citing 2 Strange 811; 4 East. 521; Cro. Jac. 523, Bacon Title Abatement G. Loft. 27; 2 Ld. Raymond, 1525. Our judiciary act of 1799, (Cobb 472,) provides that where a feme sole, “ being plaintiff,” shall marry, pending any suit, the same shall not abate by said intermarriage, but the same being suggested on record, such cause shall proceed in the name of the husband and wife.

It would be well for the Legislature to extend the provisions of the act to the case of feme sole defendants, and authorize the husbands to be made parties, not summarily upon motion, but by scire facias.

Judgment affirmed.