Meyer v. M. J. Smith & Co.

Howell, J. The principal question in this casa is whether plaintiff’s judgment of separation of property is valid. The objection to it is that she did not specially allege in her suit against her husband that she possessed a separate industry by which she could make acquisitions and support herself and family, and lieuce there was no basis for the-judgment. Iler allegation was that, “ owing to the insolvency of her husband, it becomes necessary for the preservation of her acquisitions,, the education, maintenance and support of herself and family, that a 154 dissolution of the community, etc., be decreed.” This sufficiently implies her ability to make acquisitions and support herself and family, to ■authorize the proof thereof. Such proof she has adduced in this suit, and we must presume it was before the judge who rendered the judgment of separation of property on ihe issue regularly joined between the parties in the suit for separation of property. The court a qua did not err in admitting this evidence, nor tho testimony of the plaintiff, who is competent to testify in her own behalf in this controversy with the defendants. She was not testifying in favor of her husband, but in her own behalf against defendant. The evidence in the record sustains plaintiff’s right to purchase, and her ownership of the goods seized by the defendants, and also her right to recover counsel fees in this case, which we fix at two hundred dollars, and allow upon the answer to the appeal. It is therefore ordered that so much of the judgment as rejects plaintiff’s demand for damages be reversed, and that she recover of Marshall J. Smith & Co. the sum of two hundred dollars damages, and that in other respects the said judgment bo affirmed with costs of appeal.