Arosmith v. Plummer ( 1873 )

Opinion by

Judge Lindsay:

There are two controlling- and all sufficient reasons why the judgment in this case should be affirmed.

1st. There is no evidence tending to show that the title to the mare was in Johnson-Young instead of the defendant Plummer,-except the judgment in the case of Smith v. Young, to which Plum-mer was no party, and of the prosecution of which, so far as appears from this record, he had no notice. It follows, therefore, that said judgment is not evidence against him.

2d. Appellant shows by her pleading that she is a feme covert and that she has no authority from her husband to prosecute this action in his name, and the testimony, instead of showing that her husband had deserted his family, as required by the 51st section of the civil code of practice tends to show that appellant deserted him.

Wherefore the judgment is affirmed.