Sackett v. Wilson

2 Blackf. 85, 1827 Ind. LEXIS 20

Opinion

Blackford, J.

The plaintiff had an account against the estafé of Wilson, of which estate the defendant was executrix. In conformity to the statute, the executrix, iii January, 1825, required the plaintiff to file his account in the Circuit Court for examination. Thé plaintiff, accordingly, in February following, filed a copy of his account in the clerk’s office. At the following term in April, and at the subsequent terms until the rendition of the judgment in October, 1826, the par,ties regularly appeared in the suit. The plaintiff, at one of those terms, to wit, that of April, 1826, suggested of record the marriage of .the defendant pending the suit, which was admitted; and at the term of October, 1826, he again, suggested the marriage, and moved for an order of the Court, making the husband a party to the suit. Upon the motion for' an order to make the husband a party being overrated, the'plaintiff offered to approve account, but the Court Refused to permit him to dó so, and dismissed the cause.

Wick, for the plaintiff. Fletcher and Brown, for the defendant.

To support the judgment of the Circuit Court, the defendant contends, first, that the account filed was insufficient to enable him to plead; secondly, that the plaintiff was proceeding against a feme covert, without having made the husband a party-

This appears to he a plain case. As to the first point, we think the accoünt filed is sufficiently particular, to come within the provision of the statute. It commences as follows: Isaac Wilson debtor to Lotus Sackeit. It sets out the items of the account particularly, with the dates, sums, &c. The statute requires no more

(1).

There is nothing in the second point. The Court correctly overruled the motion, to make the husband a party: that could only he done by scire facias. But the plaintiff was not obliged to proceed against the husband. Upon the failure of his motion to make the husband a party, he offered to proceed in the 'cause against the defendant alone. This we conceive he had a right to do. Thé marriage of the defendant did not in any respect affect her liability: At the commencement of the action, she was a feme sole; and she could not, by taking a husband, abate the suit, or prevent its progressing against her alone. 1 Chitt. Pl. 45.—Hamm. on Part. 227 (2).

The Circuit Court, therefore, committed an error in dismissing the suit.

Per Curiam.

The judgment is reversed. Cause remand-ad, &c.

R.C. 1824, pp. 318, 319. Stat. 1833, pp. 113, 114.

If a feme solé, during 'the pendency of a suit instituted by or against her, marry, the action does not for that cause abate, but, upon the suggestion on record of the marriage with the name of the husband, the suit proceeds against or in favour of the husband and wife, and is determined in the same manner as if the marriage had taken place before the commencement of the suit. Stat. 1826, p. 53. Acc. R. C. 1831, p. 410.