Ogden v. Guice

56 Miss. 330

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Chalmees, J.,

delivered the opinion of the court.

The demurrer is based upon the idea that we declared in Smiley v. Meyer, Weis & Co., 55 Miss. 555, that a married woman could not be sued in equity, but must be proceeded against at law.

This is an entire misconception of the decision, which only went to the length of holding that when a married woman was sued as a feme sole trader under the statute, and a general judgment in personam was sought against her, the action must be at law, since in such case no excuse existed, for going into chancery.

But where a liability is sought to be imposed upon her separate property for family or plantation- supplies, or for any of the other objects for which under the statute it may be charged, the jurisdiction of a court of chancery is concurrent with that of the law courts, and in many cases the equity forum is greatly to be preferred.

The demurrer to the bill was properly overruled. Harmon v. Choppin, 46 Miss. 304.

The deposition of the interested witness, Guice, should have been suppressed. Affidavit having been made by the defendant, under sect. 1076 of the Code of 1871, that justice required his oral examination in open court, and complainants having produced the witness in open court and then declined to examine him, it was incompetent for them thereafter to use the deposition previously taken. But, leaving Guice’s testimony out of view, there was abundant testimony to support the decree, except as to the items paid upon the insurance policy on the husband’s life.

There is no provision of the statute which makes such items obligatory on the separate property of the wife, and the fact that she was the beneficiary in the policy does not affect the result.

The decree is reversed and remanded, with directions to strike these items out. In all other respects it is affirmed.