Kennard v. Sax
Multnomah County Circuit Court, Oregon
The defendant had recovered a judgment for $79 25 against the plaintiff, Angeline Keimard, in a justice’s court, in an action for work done and material furnished in painting a house, and had sued out an execution, J. P. Kennard, the husband of Angeline, not being made a party to the action. In that action the defendant did not plead her coverture, but appeared and answered to the merits.
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The defendant had recovered a judgment for $79 25 against the plaintiff, Angeline Keimard, in a justice’s court, in an action for work done and material furnished in painting a house, and had sued out an execution, J. P. Kennard, the husband of Angeline, not being made a party to the action. In that action the defendant did not plead her coverture, but appeared and answered to the merits. This is a srdt to restrain this defendant from levying the execution on the property of the said Angeline. The plaintiffs allege that they were husband and wife at the time of the alleged contract for work…
1Opinion of the CourtUpton, J.
The first question I propose to consider is the effect of the failure to set up the coverture in the justice’s court.
It is said in Gould on pleading, p. 268, sec. 88: “Where a femme covert is sued alone she can plead her coverture only in abatement,” * * * and “if she omits to plead it as a dilatory plea, she waives it, so far os regards her own privilege, and tacitly admits she is liable to be sued alone.” But I think the author has in view the subject of coverture at the time of the action merely; and not coverture at the time of making the contract.
It is said, in 1st Chitty’s-Pl. 449:…
2Cases cited6 opinions
- Yale v. . DedererNew York Court of Appeals · 1858
- Harvey v. RickettNew York Supreme Court · 1818
- Adsit v. Wilson & ChamberlainNew York Supreme Court · 1852
- Post v. BlackNew York Supreme Court · 1847
- Ex parte Williams v. Albany Mayor's CourtNew York Supreme Court · 1835
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