Breland v. Barron ( 1889 )

Opinion by

Hurt, J.

§ 465. Marriage of feme sole plaintiff; husband must join in the suit; case stated. Appellee sued appellant upon a promissory note. At the institution of the suit appellee was a feme sole, but pending the suit she married. When the cause was called for trial appellant suggested her marriage and offered evidence in support of the suggestion. Appellee objected because appellant had not pleaded her coverture. The court refused to entertain the suggestion of appellee’s marriage, and rendered judgment in her favor. Appellant reserved a bill of exceptions, and appealed to this court. Held: The court erred in refusing to entertain the suggestion of appellee’s marriage. If she was a married woman she was not entitled to further prosecute the suit without being joined therein by her husband, or without showing a state of case entitling her to sue as a feme sole. While article 1252, Revised Statutes, contemplates that the suggestion of marriage shall be made by the plaintiff, and is for the benefit of the plaintiff, still, if the plaintiff should not make the suggestion, the defendant may make it, and, upon proving the marriage, the suit could proceed no further until the husband was made a party, or cause shown which would entitle the wife to proceed without him.

May 8, 1889.

Reversed and remanded.