Dugat v. Markham

Mathews J. delivered the opinion of the Court. In this case the plaintiff instituted her action to cause a judgment to be annulled, which had previously been obtained [35] against her by the defendant Hathern : and to stay proceedings on an execution which had been awarded on said judgment. The Court below gave judgment against her from which she appealed &c. The material facts exhibited by the record are as follows* previous to the intermarriage of Markham and the plaintiff, they entered into a contract in which amongst other things it was stipulated that there should exist a separation of property between the contracting parties : the future wife taking on herself to support entirely the necessary expenses of their household. They lived in harmony for some time, but in consequence of the interference of her children of a former marriage, she was induced to treat her husband in such a manner as to render it impossible for him longer to remain in her house. In truth she seems to have turned him out, to shift for himself. Under these circumstances he went to board with the defendant Hathern, who was plaintiff, in the original suit (wherein he obtained the judgment now complained of) both against the husband and wife in solido. Before the commencement of that action Markham had established his domicile in the Parish of St. Landry — his wife still residing in that of Lafayette. The service of citations both on the husband and wife were made at the domicile of the former ; and he filed an answer for himself, and one for his wife separately. The first question of Law arising out of these facts relates to the legality of the service of citation on the wife, and f J „ depends for its solution on her domicile. When married , . , ii i ,i i . persons are not separated from bed and board, the domicile of the wife, is by law that of the husband — See La. Code Art. 48. „ i , .. . , , lhe course of legal proceedings, as prescribed by the Code of Practice, requires, that against a defendant who has been properly cited and does not answer within the delays allowed, a judgment by default must be taken before any final judgment can be rendered. And if final judgment be [36] rendered without this formality, it carries with it a vice or jt may ke annulled — See Code of Practice. Art. 606 — No. 4. But although the husband must in all cases, unless he refuses, & then the Judge authorise the wife to sue and be sued, yet the husband has no right to appear & ¡file an answer for the wife' without her consent, where she lives separate in property, and is sued jointly with her husband. A second question occurs in this case, and that is to ascertain whether any answer was filed, legally binding on Mrs. Markham, in the case of Hathern against her and her husband ? In that suit the plaintiff attempted to make her hable for the board of her husband, under -the stipulation in the marriage contract by which she undertook to defray the matrimonial expenses. It is in reality a suit, against a married woman for a cause of action relative to her own separate interest, considered in relation to the wife in the present instance : and was properly brought both against her and her husband, who was bound to authorise, and assist her in defending it — See Code of Practice. Art. 118. Rut she must be viewed in this respect as a distinct and separate defendant, who could only appear and answer by herself, or some person duly authorised by her for that purpose, so as to be concluded by such answer. The husband tho’ bound to authorise his wife to defend, and to assist her in her defence, cannot, in his capacity as such, assume the whole management of the cause in such a manner as to bind the wife, without her authorisation. If Markham had appeared in his capacity of attorney at law, and no objections made at the time of answering, or before final judgment; the plaintiff, in this suit of nullity and injunction, would possibly have been stopped from alleging want of authority, &c. As husband, the same effect does not attach to his act in answering for her, as that was not a duty imposed on him, by law or as attorney for his wife. It is -however strenuously urged by the counsel for Ha-thern that Markham, in consequence of his capacity as husband, has complete control over the personal and possessory actions of his wife, and in support of this doctrine, the article 107 of the Code of Practice is relied on, which is ex [37] pressed in these terms : “Husbands have under their control the personal and possessory actions to which their wives axe intitled &c: therefore they can proceed judicially, and in then’ own name, in whatever relates to the preservation of their dotal property &c., as well as to the recovery of the debts due them, these being under their administration.” In the French text — “qui tombent sous leur administration.” According to the whole context of this article, we think that it relates solely to those claims and rights of action belonging to a wife, of which the husband has the sole management arising either out of matters appertaining to the dowry or paraphernal property, which he administers either by express or tacit consent on her part. In situations where separations of goods exist as in the present, the fair presumption is that each one of the married persons administers his or her separate property; and altho’ a wife, not separated from bed and board, can in no case appear in a Court of Justice without the authorisation of her husband, or that of some competent power, on his refusal; yet when she does appear, either as plaintiff or defendant, she may prosecute or defend according to the dictates of her own judgment in matters relating exclusively to her own interest. And her husband is not privileged de jure to assume the sole and exclusive management of her suits either as plaintiff or defendant. To authorise and assist, are functions distinct from absolute control. The present instance shows that cases may arise in which the interest of the husband and wife may be opposed to each other. This suit is founded on a debt contracted by the husband in which the plaintiff attempts to make the wife liable.— Their interests are opposed, and he surely cannot be viewed as a proper person to defend her. It is therefore ordered, adjudged and decreed that the judgment of the. District Court be reversed, avoided and annulled ; and it is further ordered, adjudged and decreed [38] that the injunction heretofore granted be reinstated and made perpetuaj. an¿ tpe judgment of Hathern against the plaintiff and appellant be declared null and void — reserving to the defendant and appellee Hathern, his right to pursue the appellant in legal form, for the recovery of the sums of money claimed by him from her as being bound to pay for the board and expenses occasioned by her husband &c. the appellee Hathern to pay the cost of this appeal.