Opinion
Argued December 20, 1889
Decided January 14, 1890
Thomas J. Rush for appellant.
Isaac N. Miller for respondent.
I think the appellants should prevail. The court below fell into the error of supposing that under the rules and practice in chancery proceedings, a personal service of the writ of subpœna upon the wife was necessary, although the action did not relate to her separate property. The only interest which the plaintiff had was an inchoate right of dower in the mortgaged land. That arose simply from her status as wife and gave her no separate estate.
Chancellor KENT stated the rule, in Ferguson v. Smith (2 Johns. Ch. 139), to be "that the service of a subpœna against husband and wife on the husband alone is a good service on both; and the reason is that the husband and wife are one person in law and the husband is bound to answer for both. But where the plaintiff is seeking relief out of the separate estate of the wife, it has been deemed necessary in a late case (9 Vesey, 488) that the wife should be served." See, also, Leavitt v. Cruger (1 Paige, 422).
This is the exception to the rule, which required personal service upon an infant defendant. The merger of the legal identity of the wife in that of the husband is not affected by the question of her age. The legal unity is not dependent upon the fact of the wife's majority. Therefore, when service was made upon the husband, in accordance with the rule then in force, the court acquired jurisdiction to proceed against both. The theory of the chancery practice was to secure jurisdiction over the person of the infant defendant and it was effected, in all cases except that of an infant wife, by a personal service of the writ. Thereupon, the infant was bound to appear and to have a guardian appointed. In case of his neglect to do so and of no application in his behalf, the court would proceed to make the appointment of itself, or when set in motion by complainant. (Hind's Ch. Pr. tit. Appearance; 1 Barb. Ch. Pr. 127.) But, in the case of an infant wife and where her separate property was not the subject of the proceeding, no guardian was necessary, for the husband was bound to appear for both through his solicitor and to put in a joint answer. If she refused to join in the answer, the husband could show the fact of her refusal and would be permitted to answer separately. Upon this subject I may refer to the cases of Foxwist v. Tremaine (2 Saund. 212); Chambers v. Bull (1 Anst. 269); Ferguson v. Smith ( supra); and Leavitt v. Cruger ( supra), and to the works on chancery practice. In Foote v. Lathrop (53 Barb. 183), a wife sought to avoid a judgment of foreclosure and sale taken against her in 1857, on the ground that she was then confined as insane and was not personally served with process. MARVIN, J., speaking for the General Term, in the case, in sustaining the order denying her motion, relied solely on the cases of Ferguson v. Smith, Leavitt v. Cruger and Eckerson v. Vollmer (11 How. Pr. 42).
This action was destitute of merits and lacked support in legal principles and the complaint should have been dismissed.
The order of the General Term denying defendants' motion for a new trial should be reversed, the defendants' exceptions sustained and a new trial ordered, with costs to abide the event.
All concur.
Order reversed, and judgment accordingly.