Tobin v. Connery

13 Ind. 65

• Court: Indiana Supreme Court
• Decided: November 15, 1859
• Status: Published

Opinion

Perkins, J.

This was a suit by Connery and Connery against Elizabeth Tobin and Patrick, her husband. Joint judgment for the plaintiffs below against the defendants.

T. M. LaRue and-Royse, for the appellants.

The liability of the defendants arose thus:

Elizabeth, while a feme sole, occupied a piece of property belonging to the plaintiffs. She married Patrick Tobin; and, afterwards, with her husband, continued to occupy the premises of the plaintiffs. Such are the facts of record.

For the time that Elizabeth occupied the premises as a feme sole, the suit would necessarily be brought against her and her husband; but, unless it were shown that he received property from her at marriage, or afterwards, the judgment in the case would be rendered to be levied of her separate property. 1 R. S. p. 320.

For the time the premises were occupied by Elizabeth and her husband after marriage, the suit, prima facie, should be against the husband alone; and also the judgment. Reeve’s Dom. Rel., p. 136.

But, in this case, the judgment for the use and occupation of both periods of time, is a joint one against the husband and wife. . •

There was, in this case, a misjoinder of causes of action, and a misjoinder of parties.

This Court cannot reverse a judgment for misjoinder of causes of action alone. 2 R. S. p. 38. Nor would it for a misjoinder of parties, as that could be cured by amendment. But here is, as appears by the record, a misjoinder of causes of action and of parties, from which an incurable error has intervened in the judgment. It is impossible for this Court to distinguish how much of the judgment should have been charged upon the wife alone, and how much upon the husband alone; while it appears that none of it should have been charged upon them jointly.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.