City of Dallas v. Morris , 120 Tex. 181 ( 1931 )

The Court of Civil Appeals for the Fifth District has submitted a certificate containing certified questions. The certificate shows that the city of Dallas instituted this suit, on September 20, 1925, against Mrs. I. J. Morris, a married woman, to recover of her the amount of a paving assessment made against her in the matter of paving a street upon which abuts a city lot alleged to be the separate property of Mrs. Morris. The fact of coverture of Mrs. Morris appears from the face of the original petition. The husband of Mrs. Morris is named in the petition, but in such a connection as to render it questionable whether he is joined as a party defendant in the suit. For the purpose of a decision we shall take for granted that he was not so joined. Mrs. Morris was duly served with citation. No citation was issued for her husband. Mrs. Morris, on or about appearance day, filed answer consisting of a general demurrer and general denial. More than four years after the filing of the original petition, the city filed an amended petition by which the husband of Mrs. Morris was made a party defendant in the suit. The cause of action alleged against Mrs. Morris in the amended petition is the same as that alleged in the original petition. Mrs. Morris and husband excepted to the amended petition on the ground that it showed on its face that the cause of action asserted therein was barred by the statutes of limitation of two and four years. The exceptions were sustained by the trial court on the theory that, until Mr. Morris was joined as a party defendant, Mrs. Morris was legally incapable of becoming a party, and therefore the suit as originally instituted was a nullity so far as the claim against Mrs. Morris is concerned.

The Court of Civil Appeals submits the following certified questions:

Question 1. Is the husband, I. J. Morris, made a party defendant by the allegations in the first paragraph of the original petition filed in this cause?

Question No. 2. Does the filing of a suit against a married woman, whose disability of coverture at the time of filing the suit is disclosed by the petition, toll the running of the statute of limitation, fixing the time within which such suit must be brought, where the husband is not joined as a party defendant?

We shall take up for determination the second certified question.

The claim for the paving assessment, asserted by the city against Mrs. Morris in the original petition and in the amended petition, is shown by the averments of those respective instruments of pleading to be a separate demand against Mrs. Morris, and for the payment of which she is liable. Spears v. San Antonio, 110 Tex. 618, 223 S.W. 166. This claim was not barred by limitation when the original petition was filed.

Article 1985 of the statutes provides:

"The husband shall be joined in suits for separate debts and demands against the wife, but no personal judgment shall be rendered against the husband."

The very terms of this statute imply the wife's legal capacity to be sued. The suit contemplated by the statute is essentially against the wife, for it is expressly provided no personal judgment shall be rendered against the husband. The statute clearly implies the wife's capacity to litigate in her own right. When sued, she is reached directly; not indirectly through the person of her husband. The husband is made a necessary party to the suit against her; but it is quite evident that the Legislature did not mean, by so providing, to qualify the wife's capacity to litigate, which the statute implies, or to require that a suit brought against her alone be treated as a nullity. As said by our Supreme Court in Cayce v. Powell, 20 Tex. 768: "The authority conferred upon a married woman, to litigate in her own right, implies the capacity on her part, to conduct the litigation as shall be most conducive to her own advantage. The law has conferred on her the right to litigate, and the right implies capability."

The wife's legal capacity to be sued is the same whether her husband be joined in the suit or not. So, too, is her liability on the claim asserted against her. The statutory requirement that her husband be joined with her in the suit, goes merely to the matter of procedure for the establishment and enforcement of her liability. A suit on a separate demand against her, without the husband being joined as a party defendant, is so defective that a judgment rendered therein against the wife would be voidable, perhaps, but the suit is not void. The bringing in of the husband, prior to judgment, cures the defect and this cure relates back, in its operation, to the commencement of the suit.

The fact that the plaintiff's petition in a pending suit against a married woman discloses her coverture, does not bear on the question under consideration. If the suit were void on account of her legal incapacity to be sued, it would be so regardless of whether the fact of such incapacity appeared on the face of the petition or not.

The question decided in Taylor v. Hustead (Texas Com. App.),257 S.W. 232, is a different question from that involved here. Language used in that case, which does not harmonize with the views hereinabove expressed, is not regarded as authoritative.

We recommend that certified question No. 2 be answered in the affirmative. This renders an answer to question No. 1 immaterial.

The opinion of the Commission of Appeals answering the certified question is adopted, and ordered certified.

C. M. CURETON, Chief Justice.