Fox v. Tooke , 34 Mo. 509 ( 1864 )

Bates, Judge,

delivered the opinion of the court.

The judgment in this case was rendered against a married woman to charge her separate estate. She appeared and answered only by attorney. This was manifest error. (Claflin v. Van Wagoner, 82 Mo. 252.) The respondent insists that exception cannot be here taken to that error, because the point was not expressly decided in the lower court. In this case, as it appeared upon the record that she was a married woman, we think that it was the duty of the court below to see that she appeared by a proper person, even though she herself neglected to appear properly. For the manifest error, the judgment must be reversed and the cause remanded.

Judges Bay and Dryden concur.