PHILENA E. SMITH, APPELLANT,
v.
HIRAM R. SMITH, APPELLEE
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This case addresses whether a married woman can sue in her own name to establish a separate property estate. The court affirmed the dismissal of her bill, finding she failed to meet the legal requirements for such a suit.
No, a married woman generally cannot sue in her own name; she must sue by her next friend. While an amendment could have cured this defect, the court found the underlying claim insufficient to warrant granting the prayer of the bill.
“It is the well established law and the universal practice pf the courts that a married woman cannot' maintain a suit in her own name, but must sue by her next friend.”
Establishes the general rule regarding married women's capacity to sue.
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Join FLexlaw to unlock all legal intelligenceA married woman filed a bill against her husband to have real property declared her separate estate, claiming it was purchased with proceeds from her …
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delivered the opinion of the court.
This was a bill filed by appellant, who is a married woman, residing in Florida, against her’ husband, who is also a resident of this State. The bill is brought for the pur*794pose of obtaining a decree declaring certain real property heretofore conveyed to him declared to be and set apart to her as her separate estate and property, and authorizing her to sell, convey and dispose of the' same as she may deem proper. The alleged ground of such prayer is that the property was purchased with money which was the proceeds of her separate property in Virginia. The Chancellor decreed upon the bill, answer and testimony that she had failed to make out her case and dismissed the bill* whereupon she appealed.
It is the well established law and the universal practice pf the courts that a married woman cannot' maintain a suit in her own name, but must sue by her next friend. 1 Dan. Chy. Pr., 5 Am. Ed., 108; Story’s Eq. Pl., §§61, 63; 2 Vesey, Sr., 452; 5 Paige, 581; Wend., 357; 3 Paige, 440.
The only exceptions to the rule were in cases whei’e the husband had been banished, or had abjured the realm, or been transported for felony. Under an act of March 11, 1879, married women may be licensed and empowered by the Circuit Court to transact business in their own names, and to sue and be sued, as if they were unmarried. (McClellan’s Dig., 756.) This is the only law of this State authorizing suits by married women alone.
No objection was taken by the appellee (defendant) to the manner of bringing this suit, but we cannot, by our silence, pei'mit or endorse such a violation of well established law.
The Chancellor might have allowed an amendment, so as to have cured that difficulty, (3 Paige, 440,) and we may have the power to send the case back with instructions to allow the amendment, but, looking at the pleadings and testimony, wc do not think such a case is made as would warrant a decree granting the prayer of the bill.
The decree is affirmed.
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Blood v. Hunt, 97 Fla. 551 (Fla. 1929)…Gen. Stats. 1920, Sections 1955-1959, Gen. Stats. 1906, Sections 1505-1509, Rev. Stats. 1892, pages 756-757, McClellan’s Digest. See Lerch v. Barnes, 61 Fla. 672, 54 So. R. 763; Com. Bldg. Co. v. Parslow, 93 Fla. 143, 112 So. R. 378. Smith v. Smith, 18 Fla. 789; Crawford v. Feder, 34 Fla. 397, 16 So. R. 287; Walling v. The Christian Craft Groc. Co., 41 Fla. 479, 27 So. R. 46; Drake v. Marsh, 66 Fla. 598, 64 So. R. 268; Martinez v. Ward, 19 Fla. 175. As to married women’s contracts to convey their separate…1 / 2
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Edgar v. Maude Milling Bacon, 97 Fla. 679 (Fla. 1929)…s. 4203, 4204, 5870, 5871, Comp. Gen. Laws. Where the general rule applies, and she sues by next friend, such next friend may very properly be the husband when he is not adversely interested. Wood v. Wood, 56 Fla. 882, 47 So. R. 560; Smith v. Smith, 18 Fla. 789; Taylor v. Brown, 32 Fla. 334, 13 So. R. 957; Beach Mud. Equity Prac., Sec. 51. And, as held in the last cited case, the objection to the failure of a married woman to sue in equity by a next friend will be deemed to have been waived if not made in…
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Walker J. Wood v. Capitola L. Wood, 56 Fla. 882 (Fla. 1908)….prochein ami is not essential at least in the absence of special circumstances shown to the court. Suits for alimony have uniformly been brought by the wife in her own name as appears to be contemplated by the statute. The case of Smith v. Smith, 18 Fla. 789, referred to by counsel, relates solely to a trust in real estate, and the court in 1882, held the suit should have been brought by next friend. If the want of proper or necessary parties is apparent on the face of the bill of complaint, the defect…
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