Strayer v. Leonard , 13 Mont. 435 ( 1893 )

Harwood, J.

In this case plaintiff demands judgment against defendant on an alleged debt consisting of two items —one item of ninety-two dollars for board and lodging; and another of fifty-seven dollars and twenty cents for office rent. The action was first prosecuted to judgment in favor of plaintiff in the justice’s court, and carried into the district court by defendant’s appeal, where the trial de novo again resulted in. judgment for plaintiff, from which latter judgment defendant appeals to this court.

The question here presented by appellant is that plaintiff is incompetent to sue and recover said alleged debt, because it appears she is a married woman, and has not complied with the statute in respect to married women becoming sole traders, nor filed a separate property list; and, further, that it appears that the item of fifty-seven dollars and twenty cents for office rent, included in said judgment, was assigned to plaintiff by her husband, and appellant insists that such assignment is void, on the ground that plaintiff, being a married woman, could not acquire the right to said account by assignment from her husband.

Whatever question might be raised on the part of the husband, or on the part of a creditor, as to the validity of said assignment, or as to the right of the wife to claim the proceeds for said board and lodging as against the husband or his creditors, appellant is in no position to raise those questions, nor to suffer by payment to the wife. The failure of plaintiff to comply with the provisions of the sole trader’s act or the provisions for the recording a separate list of her property may leave her property in a condition to be taken by her husband’s creditors, or may leave the husband in a position to be held liable for the debts of plaintiff. These considerations relate to the rights of the creditors and of the husband, and neither of them are complaining. The creditors’ rights are not prejudiced by the fact that the wife has left undone those things which would create certain exemptions of property, and of the liability in favor of herself and husband. So as to the husband, he not only transferred said account for office rent to his wife, the plaintiff, but he appeared at the trial, and by his testimony supported her claim thereto, and also her right to collect for said board and lodging. Under these conditions, of course he would be estopped from undertaking to claim and enforce payment of said items to himself after defendant had paid the same to the wife. According to our law of domestic relations it is considered not only lawful, but proper, for the husband to furnish the wife somewhat for the supply of her wants; but this defendant would have it that she could take nothing from her husband lawfully. If, in this resistance of the payment of his board bill or said office rent to plaintiff, defendant thinks he is upholding the rights of the creditors of the husband or wife, or upholding abstract principles of law concerning domestic relations, he is mistaken in his mission, and the hallucination under which he moves ought to be dispelled by au execution.

Judgment affirmed, with costs.

Affirmed.

De Witt, J., concurs.