Griffith v. Clarke

Bartol, J., delivered the opinion of this court. In this case the motion to dissolve the injunction was set down for hearing on the 8th day of October 1858; afterwards, by agreement of the solicitors, a commission to take testimony was issued, which was returned, and on the 21st day of April 1860, the cause was, by agreement, set down for final décree. Whereupon the Circuit court, on the 1st day of December 1860, passed an order continuing the injunction, and reserving for further consideration the question, “whether the separate estate of the complainant can be made liable in equity, under these proceedings, for the satisfaction of the promissory note” held by the appellant, Griffith. From that order this appeal was taken, and the appellee has moved this court to dismiss this appeal, because no final decree has been passed settling the rights of the parties. In the opinion of this court, the motion ought to be overruled and the appeal retained. By the Acts of 1835, ch. 346, and ch. 380, an appeal is allowed from an order refusing to dissolve an injunction. (See Code, Art. 5, sec. 21.) This right, granted in express terms, is not defeated because the case had been set down for final hearing, and other questions were reserved for further consideration by the Circuit court. We concur with the judge of the Circuit court in the propriety of refusing to dissolve the injunction. The promissory note, signed by Mrs. Clarke, could not be enforced against her by any proceedings at law. It is immaterial for us to inquire, whether she was ever actually summoned by the sheriff or not; the judgment entered against her by default was a nullity, and can no more be enforced against her at law than the note sued on. The principle, that a party cannot impeach a judgment on [464] any ground which might have been pleaded or relied upon as a defence to the suit, does not apply to a case like this, where ihe defendant is a feme covert, and not sui juris. (Decided June 27th, 1862.) Persons in the condition of the appellee are not competent to employ an attorney. If she had appeared in the suit at law by attorney employed by her husband, anti her coverture had been pleaded in defence to the action, the court would have allowed the plea. But the question here is, whether the defendant,- being sued at law on a personal contract, altogether ■void at law,- is to be prejudiced by the entry of a judgment by default against her,- for non-appearance? In our opiuion, such a1 judgment is, at law, merely void, and was properly enjoined by the Circuit court. In support of these conclusions, it is sufficient to refer to the authorities cited by the appellee’s counsel under the first and second points of their argument.- We affirm the order of the Circuit court refusing to dissolve the injunction, and forbear to express any opinion on the question- reserved by that court for future consideration. Order affirmed and cause remanded.