Wood v. Wood

2 Paige Ch. 454, 1831 N.Y. LEXIS 320, 1831 N.Y. Misc. LEXIS 113

Opinion

The Chancellor.

A feme covert has no right to file a bill against her husband without the interposition of a next friend, who will be answerable for the costs, in case the suit is instituted without any reasonable cause,

(a) If the objection appears on the face of the bill, it is a good cause of demurrer; and the objection goes to the whole bill. (Willis’ Eq. Pl. 5, n. s. Mitford, 153. Cooper, 163.) The statute has authorized her, in a suit for a divorce which is to dissolve the marriage contract, to institute the same in her own name. But by the revised statutes this power is only given under the article which relates to divorces on the grounds of adultery. (2 R. S. 144, art. 3, § 39.) This section, which authorizes the defendant to answer without, oath, was never intended to apply to bills filed tinder the second or fourth articles. Nor was the 163rd rule intended to create any new disqualification, but merely to declare the existing law of the court,' and to call the attention of the bar to the distinction which had been made by the revised statutes. As it appeared on the face of the proceedings that this bill was irregularly and improperly filed in the name of the wife alone, the defendant ought not to have been subjected either to costs or expense, until the irregularity was corrected by an amendment of the bill or otherwise. In the case of Mix v. Mix, (1 John. Ch. R. 108,) it was at least doubtful whether the demurrer could be sustained; and for that reason a small allowance was made for the wife until that question could be decided. Here the bill is filed not only against the settled law of the court, but in direct violation of one of its standing rules. It would therefore be unreasonable to compel the defendant to furnish the means of carrying on a suit which the court must see cannot be sustained.

The order of the vice chancellor must therefore be reversed ; but without prejudice to the right of the complainant to renew the application, if her bill shall be amended by inserting the name of a responsible person as her next friend. There being no evidence that the wife has any separate estate, no 'costs can be awarded against her on this appeal. The appellant’s counsel ask for costs, to be paid by the soli" citor, but I know of no principle which can authorize an appellate court to charge the solicitor of the respondent with costs produced by the mistake of the judge whose decision is reversed.

See Lube’s Equity Pleading 25.