Delacroix v. Barrow

Lddeling, C. J. The plaintiff having issued an execution against the defendant, filed a iietition praying that M. J. Barrow he cited to answer interrogatories propounded to her, and for a judgment against her according to law. He prayed that her husband might also be cited to aid and authorize her to act in the suit. No citation was addressed to the husband, but the wife alone was cited. She appeared, to file a plea to the jurisdiction of the court ■ratione materias, which was properly overruled. Martha J. Barrow having failed to answer the interrogatories, on .motion they were taken for confessed, and a judgment against her' was accordingly rendered. On appeal, the judgment in this case was set aside on tlie ground that the wife had not been authorized either by her husband or the court, and the case was remanded to be proceeded with according to law. The plaintiff then obtained the authorization of the court for her to defend the suit, and then judgment was taken •against her. It is now contended that tlie court could not give the authorization, as the husband was not absent nor had lie refused to authorize her; that he had never been cited, as the law requires, and therefore his wife was not properly in court. These objections seem well founded inlaw. In Henry v Brice, 11 An. 691, it was said that it is only when the answers of the party garnished are traversed, that the proceedings .partake of the character of a legal controversy; aud it is there intimated that the wife, in a case where the answers are not traversed, or where she fails to answer, need not he authorized by her husband, or the court. But the garnishment process is certainly a suit; there must be a petition and citation to got the garnishee before the court, and then follows a judgment in accordance with tlie evidence. If the garnishee confesses that he or she is indebted, either expressly or by •making default, a judgment will be entered up against the party so confessing. The wife can not bind herself by a contract without the .authorization of her husband; neither can she be sued without citing her husband to authorize her to defend the suit. How, then, can she -confess judgment without the authorization of her husband, either expressed or implied? This litigation, on the part of tlie garnishee, [142] seems to be only for delay; but we have no right to disregard the law.. Article 118, C. P., declares, “When one intends to sue a married-woman, for a cause of action relative to her own separate interest, the-suit must be brought against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by the judge before whom the suit is brought. C. P. 206; 2 An. 281; 9 An. 197; 1 An. 260. There is nothing in the record to show that the husband was absent. It is therefore ordered and adjudged that the judgment of the district court be reversed, and that the case be remanded in order that the husband of the garnishee may be cited according to law. It is-further ordered that the appellee pay the costs of this appeal.