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The evidence upon the trial was brief, though the exceptions in the case are very numerous, some of which it is very difficult to understand. I shall notice but few of them.
The action was to recover the sum awarded to Mrs. Palmer. The motion to dismiss the complaint or nonsuit the plaintiffs, on the objections that the action should have been in her name alone, and that she should have sued by next friend, was properly overruled. When this action was commenced, the code (§ 114) was, "Where a married woman is a party her husband must be joined with her, except that, 1st. When the action concerns her separate property, she may sue alone. 2d. When the action is between herself and her husband, she may sue or be sued alone. But when her husband can not be joined with her, as herein provided, she shall prosecute or defend by her next friend." There is some conflict in the decisions of the Supreme Court in construing this section. In Brownson and wife v. Gifford and others, (8 How. P.R. 389,) it was held by Justice HARRIS, at special term, that the husband could not be joined with the wife in an action which concerned her separate property; and he sustained a demurrer on this ground of a defect of parties plaintiff. The action was purely equitable, arising upon a will. In Rusher and wife v.Morris and wife, (9 How. P.R. 266,) the action was to foreclose a mortgage given to Mrs. Rusher, and the defendant demurred on the ground of defect
of parties plaintiff. Justice ROSEVELT overruled the demurrer, holding that the husband was properly joined with the wife in the action. In Smith v. Kearney, (9 How. P.R. 466,) the plaintiff was a wife and sued by her husband as her next friend. HOFFMAN, Justice, reviewed the decision last mentioned, and disapproved it, holding that the husband could not be joined with the wife in an action concerning her separate property. I am inclined to agree with Justices HARRIS and HOFFMAN, that a husband is not a proper party in an action by the wife concerning her separate property; such property is held by her in opposition and without regard to marital rights. The decision, however, in Brownson andwife v. Gifford and others, sustaining the demurrer on the ground of a defect of parties, was undoubtedly wrong. One of the grounds of demurrer allowed by the code (§ 144) is, "that there is a defect of parties plaintiff or defendant." This ground does not reach a case where there are too many plaintiffs, or too many defendants, but only those cases in which, from the statement of the cause of action, it appears that there are parties omitted, who should have been made parties plaintiff or defendant. It is the same as nonjoinder of a necessary party, in an action at law, under the superseded system, or the omission of a necessary party in a suit in equity where it was said the suit was defective, and a demurrer could be interposed forwant of parties; or the objection could sometimes be taken in the answer, or raised on the hearing. Now this objection ofdefect of parties must be taken by demurrer, if it shall appear upon the face of the complaint. If it does not so appear, the objection may be taken by answer. (Code, § 147.) If the objection of this defect is not taken by demurrer or answer, the defendant shall be deemed to have waived it. (§ 148.) The language, "defect of parties," was taken from the equity branch of the law as administered in the Court of Chancery, and it was happily chosen, in view of the new system. It has no reference to the misjoinder of parties; nor is misjoinder of
parties one of the causes of demurrer under the code. As we have seen, the objection of a defect or want of parties can not now be raised on the hearing or trial, not having been raised by demurrer or answer, and being deemed waived. But it is provided in the code, (§ 122,) that, "when a complete determination of the controversy, between the parties, can not be had without the presence of other parties, the court must cause them to be brought in." If there is a misjoinder of parties, that is, if the facts stated in the complaint show no cause of action against the defendants, in favor of one of the plaintiffs, the defendants may demur, under the sixth subdivision of § 144, as to such plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and as to such plaintiff the complaint will be dismissed. And so as to one of the defendants against whom no cause of action is stated. If the objection is not raised by demurrer, or does not appear in the complaint, it may, of course, be raised on the trial, and the complaint will be dismissed as to the plaintiffs in whose favor no cause of action is shown, and so as to the defendants against whom no cause of action is shown. By section 274, "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants." Now, if the plaintiff has a good cause of action against one or more of the defendants, he is not to be dismissed from the court as to him or them, though he has joined one or more defendants against whom he had no cause of action. So if one is joined as a plaintiff who has no cause of action in connection with his co-plaintiff, the complaint, as to him, will be dismissed, but his co-plaintiff may, if he has a cause of action, recover. These positions are now well understood, and have received the sanction of the courts; and I may add, that I have always regarded these provisions of the code as the most valuable portions of it, effecting a very salutary reform in the law touching parties to actions. (See Brumskill v. James, 1 Ker. 294; Zabriskie v.Smith, 3 id. 322, 336; The People v. Cram, 8 How. 151; Cowles Curtis v.Cowles, 9 id. 361; Peabody v. The Washington Mutual Ins.Co., 20 Barb. 342.)
In the present case the defendant could have demurred sucessfully to the complaint upon the ground that it stated no cause of action in favor of Joseph Palmer, and as to him the complaint would have been dismissed, assuming that I am right in the position that he was not, as husband, a proper party. They could also have raised the question on the trial, no cause of action appearing in his favor, and procured, as to him, a dismissal of the complaint; but they did no such thing. They insisted upon a dismissal as to both plaintiffs. She had no legal capacity to sue except by a next friend, and the defendants were authorized by subdivision 2 of section 144 to demur on this ground. As this objection appeared upon the face of the complaint, and was not taken by demurrer, it was waived, and could not be raised upon the trial.
The defendants also objected that as Nancy E. Palmer was a married woman, the submission of the matters in controversy by her was void, and asked that the complaint be dismissed for this reason, and excepted to the decision of the referee denying the motion. I think the referee did not err in this decision. It is undoubtedly true that at common law, owing to the peculiar relations between husband and wife, and the disabilities imposed upon the wife, her submissions to arbitration were generally void. Her deeds and contracts being void she could not bind herself to perform an award, and there was a want of mutuality. (Rumsey v. Leek, 5 Wend.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The evidence upon the trial was brief, though the exceptions in the case are very numerous, some of which it is very difficult to understand. I shall notice but few of them.
The action was to recover the sum awarded to Mrs. Palmer. The motion to dismiss the complaint or nonsuit the plaintiffs, on the objections that the action should have been in her name alone, and that she should have sued by next friend, was properly overruled. When this action was commenced, the code (§ 114) was, "Where a married woman is a party her husband must be joined with her, except that, 1st. When the action concerns her separate property, she may sue alone. 2d. When the action is between herself and her husband, she may sue or be sued alone. But when her husband can not be joined with her, as herein provided, she shall prosecute or defend by her next friend." There is some conflict in the decisions of the Supreme Court in construing this section. In Brownson and wife v. Gifford and others, (8 How. P.R. 389,) it was held by Justice HARRIS, at special term, that the husband could not be joined with the wife in an action which concerned her separate property; and he sustained a demurrer on this ground of a defect of parties plaintiff. The action was purely equitable, arising upon a will. In Rusher and wife v.Morris and wife, (9 How. P.R. 266,) the action was to foreclose a mortgage given to Mrs. Rusher, and the defendant demurred on the ground of defect
of parties plaintiff. Justice ROSEVELT overruled the demurrer, holding that the husband was properly joined with the wife in the action. In Smith v. Kearney, (9 How. P.R. 466,) the plaintiff was a wife and sued by her husband as her next friend. HOFFMAN, Justice, reviewed the decision last mentioned, and disapproved it, holding that the husband could not be joined with the wife in an action concerning her separate property. I am inclined to agree with Justices HARRIS and HOFFMAN, that a husband is not a proper party in an action by the wife concerning her separate property; such property is held by her in opposition and without regard to marital rights. The decision, however, in Brownson andwife v. Gifford and others, sustaining the demurrer on the ground of a defect of parties, was undoubtedly wrong. One of the grounds of demurrer allowed by the code (§ 144) is, "that there is a defect of parties plaintiff or defendant." This ground does not reach a case where there are too many plaintiffs, or too many defendants, but only those cases in which, from the statement of the cause of action, it appears that there are parties omitted, who should have been made parties plaintiff or defendant. It is the same as nonjoinder of a necessary party, in an action at law, under the superseded system, or the omission of a necessary party in a suit in equity where it was said the suit was defective, and a demurrer could be interposed forwant of parties; or the objection could sometimes be taken in the answer, or raised on the hearing. Now this objection ofdefect of parties must be taken by demurrer, if it shall appear upon the face of the complaint. If it does not so appear, the objection may be taken by answer. (Code, § 147.) If the objection of this defect is not taken by demurrer or answer, the defendant shall be deemed to have waived it. (§ 148.) The language, "defect of parties," was taken from the equity branch of the law as administered in the Court of Chancery, and it was happily chosen, in view of the new system. It has no reference to the misjoinder of parties; nor is misjoinder of
parties one of the causes of demurrer under the code. As we have seen, the objection of a defect or want of parties can not now be raised on the hearing or trial, not having been raised by demurrer or answer, and being deemed waived. But it is provided in the code, (§ 122,) that, "when a complete determination of the controversy, between the parties, can not be had without the presence of other parties, the court must cause them to be brought in." If there is a misjoinder of parties, that is, if the facts stated in the complaint show no cause of action against the defendants, in favor of one of the plaintiffs, the defendants may demur, under the sixth subdivision of § 144, as to such plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and as to such plaintiff the complaint will be dismissed. And so as to one of the defendants against whom no cause of action is stated. If the objection is not raised by demurrer, or does not appear in the complaint, it may, of course, be raised on the trial, and the complaint will be dismissed as to the plaintiffs in whose favor no cause of action is shown, and so as to the defendants against whom no cause of action is shown. By section 274, "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants." Now, if the plaintiff has a good cause of action against one or more of the defendants, he is not to be dismissed from the court as to him or them, though he has joined one or more defendants against whom he had no cause of action. So if one is joined as a plaintiff who has no cause of action in connection with his co-plaintiff, the complaint, as to him, will be dismissed, but his co-plaintiff may, if he has a cause of action, recover. These positions are now well understood, and have received the sanction of the courts; and I may add, that I have always regarded these provisions of the code as the most valuable portions of it, effecting a very salutary reform in the law touching parties to actions. (See Brumskill v. James, 1 Ker. 294; Zabriskie v.Smith, 3 id. 322, 336; The People v. Cram, 8 How. 151; Cowles Curtis v.Cowles, 9 id. 361; Peabody v. The Washington Mutual Ins.Co., 20 Barb. 342.)
In the present case the defendant could have demurred sucessfully to the complaint upon the ground that it stated no cause of action in favor of Joseph Palmer, and as to him the complaint would have been dismissed, assuming that I am right in the position that he was not, as husband, a proper party. They could also have raised the question on the trial, no cause of action appearing in his favor, and procured, as to him, a dismissal of the complaint; but they did no such thing. They insisted upon a dismissal as to both plaintiffs. She had no legal capacity to sue except by a next friend, and the defendants were authorized by subdivision 2 of section 144 to demur on this ground. As this objection appeared upon the face of the complaint, and was not taken by demurrer, it was waived, and could not be raised upon the trial.
The defendants also objected that as Nancy E. Palmer was a married woman, the submission of the matters in controversy by her was void, and asked that the complaint be dismissed for this reason, and excepted to the decision of the referee denying the motion. I think the referee did not err in this decision. It is undoubtedly true that at common law, owing to the peculiar relations between husband and wife, and the disabilities imposed upon the wife, her submissions to arbitration were generally void. Her deeds and contracts being void she could not bind herself to perform an award, and there was a want of mutuality. (Rumsey v. Leek, 5 Wend. 20; Watson on Arb. 69; Russell on Arb. 20 et seq.) As by the common law the husband was entitled to the chattels and choses in action of his wife, he could submit disputes relating to them to arbitration. (Watson and Russell,sup.) In the case under consideration, the submission was binding upon Joseph Palmer, and there was therefore sufficient mutuality. Besides, in this case the claim
submitted was made by Palmer and wife, or one of them, and no claim was made by Gilbert and Davis. True, if the submission by the wife was void she would not be bound by the award, but might pursue her claim in court.
The ancient strict rule of the common law, however, touching awards made under submissions by infants and married women, has been modified; and although such awards, at one time, in favor of infants and married women, were not enforceable at law, and the Court of Chancery in an old case set aside an award in favor of an infant, on the ground that it was not equitable or reasonable, and that there was no mutuality, (Russell on Arb. 290, citing 1 Cas. in Chancery, 279; and see Biddell v. Dawse, 6 B.
Cress. 255,) the rule more recently established and acted upon by courts of law in England is, that where a party has knowingly and voluntarily entered into a submission with a married woman or infant, and an award has been made against him, the court will not set it aside on the ground that the married woman or infant is not bound by it, as the party knew beforehand that they could not be bound by it, and therefore has all the consideration for his agreeing to his submission for which he stipulated; and if he did not mean to be satisfied with such effect as the award would have upon them, he ought not to have consented to the reference. (Russell on Arb. 22, 290, 637; In re Warner, 2 Dowl. R. 148;Wrightson v. Bywater, 3 M. W. 199; Jones v. Powell, 6 Dowl. 483.)
In equity, a married woman having a separate estate is regarded as competent to act concerning such estate, as though she was a single woman. This was not so at law, and as neither of the acts of 1848 or 1849, concerning the separate rights of married women, removed the common law disability of entering into a contract of submission, as in this case, I prefer to put this case, as to the award binding the defendants, upon the authorities referred to. The objection is to the submission, and is made upon the strict ancient
rule of the common law, that there was no mutuality, as Mrs. Palmer, being a married woman, had no power to bind herself by the submission. This disability has been since removed by the acts of 1860 (ch. 90) and 1862 (ch. 173.) There was no difficulty, at the time this action was brought, in Mrs. Palmer's maintaining, by her next friend, this action upon the award, provided it was valid. And by an amendment of the code, (§ 114,) in 1857, a next friend was dispensed with.
The submission in this case was not under the revised statutes relating to arbitrations. (Vol. 2, p. 541.) It was a common law submission. Nor was the submission respecting the claim of any person to any estate in fee or for life to real estate. The submission recites that Joseph Palmer and Nancy E. Palmer his wife, or one of them, claim an "interest in the Huestis farm or the proceeds thereof." This was the claim submitted — aninterest in the farm or the proceeds thereof. It does not appear that this was a claim in fee or for life to the farm. And the evidence showed that the claim was for a part of the proceeds of sales made of portions of the farm, and that a written agreement touching the rights of Mrs. Palmer had been previously made. It is not necessary to inquire what the common law is relating to arbitrations as affecting real estate; nor whether our statutes have changed the common law touching the matter.
The exceptions of the defendants to the decisions upon the questions raised concerning the claim submitted, were not well taken.
The judgment should be affirmed.