Hodges v. Darden Bros. , 51 Miss. 199 ( 1875 )

Simrall, J.,

delivered the opinion of the court.

The suit was founded upon an open account for goods, wares and merchandise sold and delivered, to which the defendant pleaded the statute of limitations. The plaintiff filed a replica - tion, that the said Catharine Hodges has not been a resident of the state of Mississippi ror three years next after the cause of action accrued, but that she was absent and resided out of the state, and.that the time of such absence ought to be deducted, etc. The defendant took issue on the replication, and afterwards moved to strike it out; failing in that motion she also asked leave to withdraw her pleading, taking issue on the replication, and to be permitted to file a demurrer to it, which was tendered. This motion was overruled, and the ruling of the court on both applications is assigned for error.

The court ought not to allow the replication to be stricken out. unless it was frivolous, and presented no sort- of defense to the action. Indeed that, as well as the leave to withdraw the issue upon it, were addressed to the sound discretion of the court, to be so used as to promote a trial of the cause on its legal merits. The injunction of the statute is, that amendments before verdict shall be liberally allowed, so as to bring tbe real merits before tbe court and jury for trial. If the effect of a demurrer would be to bring up for adjudication the merits of the case, plainly, the court ought to have allowed it to be filed. That reduces the inquiry to the very narrow limits of whether the matter of replication was sufficient in law to obviate the plea. It seems to us that it obviously is. It brings the case within § 2157 of the code of 1871. W. R Fisher et ux v. C. T. Fisher, 43 Miss., 215. But it is said by counsel that this section does not include a feme covert; as to her, there is no limitation of time of suit. The words of the statute clearly embrace that class of defendants: “ If at the time when any cause of action mentioned in this section shall accrue against any person.” There is no exception in favor of any person or class of persons, nor is it perceived why married women should not be included as well as any other debtors. The statute has entirely removed the disability of coverture as to the class of contracts of the sort sued upon. Mrs. Hodges having a separate estate under the statute, has legal capacity to make them, and may be sued at law as if she were under disability for no purpose whatever.

It is not the policy of the law that the statute shall be held not to include manied women. It is just as necessary for their repose, and to cut off stale demands, as it is for any other class of debtors. The coverture does not stay or hinder the creditor from suing. Clopton v. Matheny, 48 Miss., 298, 299.

The preceding section (2156), protects and saves the right of a feme covert as plaintiff, if at the time the right accrued the disability existed. But there is no saving in behalf of a creditor of a feme covert, so long as the disability exists, and there is no power in the courts to make one.

¥e think, therefore, there are merits in the replication to the plea, and that the circuit court did right in declining to strike it out, or to allow the issue upon it to be withdrawn for the purpose of interposing a demurrer to it.

The judgment is affirmed.