Nininger v. Board of County Commissioners

By the Court — Wilson, O. J. — If it was admitted, as claimed by the defendants’ counsel, that this action was not commenced in the proper county, the error would not deprive the Court of jurisdiction, and would not therefore be reached by this demurrer. See Merrill vs. Shaw, 5 Minn., 148. Nor is the objection well taken that the husband of the plaintiff should have been made a party in this action. When a married woman sues for her separate property the husband, is not a necessary party, plaintiff or defendant. Compiled [135] Statutes, 535, section 30; Furlong vs. Griffing, 3 Minn., 204; Hollingsworth vs. State, 8 Ind., 257; Gee vs. Lewis, 20 Ind., 149; Darby vs. Callahan, 16 N. Y., 71; Spees vs. Accessory Transit Co., 5 Duer, 662. The language of the complaint is that the “defendants executed in due form of law and issued” the bond on which the action is brought. The execution of the bond' being a traversable fact is admitted by the demurrer. When the performance of an act is alleged, it will be presumed to have been in the mode required by law until the contrary appears. The objection to the complaint, therefore, that it does not show that the commissioners executed the bond at a legal session of the board, can not be sustained. It is also objected to the complaint that it does not show that the plaintiff purchased with money that was her separate property, and not the property of her husband. This objection we think is not tenable. Under our statute the plaintiff was authorized to purchase and hold such property. She alleges that she did purchase. This is an allegation of a fact, and is admitted by the demurrer. If it is denied that the plaintiff purchased the bond in question, it will be incumbent on her to prove that fact, and when a married woman sues for her separate property without joining her husband as plaintiff or defendant, she should be held to very strict proof of the fact that the property belongs to her and not to her husband. See Stanton vs. Kirsch, 6 Wis., 339; Gamber vs. Gamber, 18 Penn. State R., 363; Weymouth vs. Ohio & N. W. R. R. Co., 17 Wis., 551. But this is a question of evidence and not of pleading. If the defendant has a right to be informed of the particular facts which constitute the chattel in question her separate property, the remedy is by motion. A demurrer will not reach such defect. Spees vs. Accessory Transit Co., 5 Duer, 662. The plaintiff having alleged that she purchased, and our law authorizing her to make purchases of this kind, it must be presumed that the purchase was legal and valid. When it is stated [136] generally in a pleading tbat .an agreement or contract was made, the Court will presume it was legal until the contrary appears. Cozine vs. Graham, 2 Paige, 177. .It is farther objected that the County Commissionershad.no power to make or issue said bond. This very question was raised and decided in case of Chaska Co. vs. Carver Co., 6 Minn., 204, and though the plaintiff in that action is not a party in this, yet it and the defendants are the parties most to be affected by the decision of the question. The-bond on which this action is brought is one of the bonds referred to in that case. The Court then held that the plaintiff in that action could not recover because the bonds were valid, and we are asked in this case to hold that the' plaintiff cannot recover because the bonds are invalid. This would be unjust. Even if we were satisfied that the doctrine of that case could not be sustained, we would not be justified in overruling it in this ease. We, therefore, follow it without examination. The order overruling the demurrer is affirmed.