Fink v. Hanegan

51 Mo. 280

Opinion

Adams, Judge,

delivered the opinion of the court.

This was an action to enforce a mechanics lien. The defendant, who is the owner of the property, is a married woman, as appears from the petition, and her husband is not joined as a party defendant.

This point is raised by a demurrer to the petition, which was sustained, and is the only question presented for our consideration.

A married woman is not sui juris and could not be sued at common law without joining her husband. It was necessary to bring him before the court to protect her interests. Our practice act as amended in 1868 ("W. S., 1001,§ 8,) is only declaratory of the common law and requires that “when a married woman is a party her husband must be joined with her in all actions except those in which the husband is plaintiff only, and the wife is defendant only, or the wife plaintiff and the husband defendant.”

An action under the mechanics lien law is no exception to this rule. This point was expressly decided by this court. in Latshaw, et al., vs. McNees, 50 Mo., 381

Let the judgment be affirmed.