Doe ex rel. Stoutz v. Burke

BEICKELL, O. J. — The sole question presented by the record is not distinguishable from that which was decided in Cohen v. Wollner, 72 Ala. 233. The power of the chancellor to relieve married women of the disabilities of coverture, is derived from the statute. — Code of 1876, §§ 2731-32. When the power is properly exercised, the result/ is a change in the status of the married woman, relieving her of the disabilities the general law imposes, and conferring upon her capacity and rights the general law withholds. The statute is enabling, [532] creating a new jurisdiction, conferring a new power upon the chancellor, not upon the Chancery Court. — Ashford v. Watkins, 70 Ala. 156. The power can not be properly exercised, unless upon the face of the proceedings it is apparent that it has been called into exercise by the petition or application of a married woman, having an estate, statutory or equitable. If these facts do not affirmatively appear, the proceedings' are coram non judice. — Cohen v. Wollner, supra. The one fact is as essential as the other. It is not intended that any and every married woman shall be relieved from the disabilities of coverture ; only such as have an estate in reference to which the capacity expressed in the statute may be employed, are within its meaning and purposes; and, of course, single women already possessed of the capacity are not within its purposes. "We repeat, then, before the jurisdiction conferred by the statute can be affirmed to exist, it must be made to appear that a petition, or application, or complaint, was actually preferred by a married woman, having a statutory or equitable separate estate. The petition, or application, upon which the proceedings and decree found in the record were based, contains no averment that the petitioner had an estate of any kind, character or description. The prayer of the petition follows the words of the statute, that she be relieved of the disabilities of coverture, “ as to her statutory and other separate estate, so far as to invest her with the right to buy,” &c.; but this is indicative only of the character of the relief, or of the decree sought, and can not be interpreted as an averment of the material fact that she had such estate. It could, and would properly, as well have been the form of the prayer, if she was without a present estate of any kind, but in the contemplation or expectation of acquiring it at some future time, by buying, or otherwise exercising the powers with which she was to be invested. The judgment is affirmed.