State ex rel. Stevens v. Waples

Opinion by Ellison, J. The defendants brought suit by attachment, on an account for furniture, against the plaintiffs, who were then and are now husband and wife.' This action is on the attachment bond given in that case and is prosecuted by the wife, the husband being joined nominally, by requirement of the statute. Before the trial in that case the cause was dismissed as to the wife and proceeded to judgment in favor of the husband, on the plea in abatement and against him on the merits. The appellants complain of the following instruction given by the court on the trial of this cause: “The jury aré instructed that it is not controverted that the bond sued on was executed by defendant and that the attachment in the case in which it was given, to wit: the case of Kevill & Waples v. E. Stevens and Mrs. Stevens was dissolved by the judgment of the circuit court at the October term thereof, 1881. Hence plaintiff is entitled to recover in this action such damages as she has sustained by reason of the said attachment. H you believe that the property attached in the said suit was the property of Mrs. Mary E. Stevens; if she purchased it with her own money, took it into her possession, her husband not taking possession of the property, then you should find her damages to be such sum as you believe said property to have been reasonably worth at the time it was attached, with interest on such sum from the date of the taking of such property, but if you do not find said property to have been the property of ktrs. Mary E. Stevens, you should find damages in such sum only as you believe from the evidence the attorney’s services were reasonably worth in defending said attachment against Mrs. Mary E. Stevens, not exceeding fifty dollars.” After the jury had returned into court with the state [147] ment that they did not understand the instructions as given, the court further instructed them “that they must 'find for the plaintiff, but if they found that no goods of hers had been taken under the attachment, then her damages would be such an amount as would cover, her expenses in the trial of that case.” There was no evidence in the cause showing that Mrs. Stevens has ever-paid an attorney’s fee; though we recognize that a legal obligation to pay by parties sui juris, is as good a foundation for an action as actual payment; and here lies the principal question in the case. As the only evidence of the expense of the trial was the hiring of an attorney, it will be seen the court peremptorily instructed the jury to find for'Mrs. Stevens an attorney’s fee, notwithstanding the goods attached may ’not have been hers. The original suit being an ordinary action at law by attachment, was a void proceeding against Mrs. Stevens. —Gage et al. v. Gates, 62 Mo. 412. Any judgment or action taken in the cause would have been void and absolutely without-effect as to her. — Corrigan v. Bell, 73 Mo. 53; Weil v. Simmons, 66 Mo. 617; Wernecke et al. v. Wood, 58 Mo. 352; Lincoln v. Rowe et al., 64 Mo. 138; Higgins v. Peltzer, 49 Mo. 152. Damages for expenses are not recoverable on an attachment bond;> except such as the defendant would be legally liable to pay. If there was and is no liability on the part of Mrs. Stevens to pay an attorney’s fee, if any pretended obligation on her part is invalid, if her contract to that end is of no effect, if she has incurred no liability; then indeed she is not damaged. By force of the law, the ■question presents itself as though she in point of fact had employed no attorney and had no agreement with one. “A married woman is wholly incapable of making any contract whatsoever, which will bind her personally, or create against her a personal debt or obligation.” — Musick v. Dodson, 76 Mo. 624. “And it has been expressly decided that a married woman’s promise to pay an attorney his fee for obtaining [148] a divorce for her would not be binding upon her.” — Ib. 625. And so the Supreme Court of this state, in speaking of of a suit against a married woman, says: “It is very clear to my mind that the defendant was not competent to employ an attorney or make defence in her own name. She was sued in a legal proceeding upon a personal contract altogether void at law.” — Higgins v. Peltzer, 49 Mo. 152. Again, in a case where a note already executed, was in fact altered, by procuring and adding the signature of a married woman, it was held that the signature “imposed upon her no legal liability whatever; being in contemplation of law a nullity, the responsibilities of the parties to the note was in no way increased or diminished or otherwise changed by the addition of her name thereto. * * When written it was in the eye of the law and still is nothing.” — Williams v. Jensen, 75 Mo. 681. As to what remedies a married woman has when her property is being disturbed or injured withput authority of law, need not now be discussed. The judgment is reversed and cause remanded. The other judges concur.