Newhouse v. Miles , 9 Ala. 460 ( 1846 )

GOLDTHWAITE, J.

If it is conceded the husband, in the circumstances of this case, is not a proper party complainant, yet the objection taken for the first time, at the hearing, is too late, and will be disregarded if it does not materially affect the propriety of the decree. [Story’s Eq. Pl. 417, § 544; Watertown v. Cowen, 4 Paige, 510; Erwin v. Ferguson, 5 Ala. Rep. 158.] The objection might possibly have been of some weight, if the decree had admitted the husband as a party in interest, so as to have given him the control of the fund; but instead of that, it directs the money, when received, to be paid over to the trustee of the wife, to her sole and separate use. A result precisely as it should be, if the husband was altogether omitted, or made a party defendant.

Decree affirmed.