Moore v. Moore

Opinion by GALBRAITH, C.

The defendant in error, as plaintiff in the trial court, commenced this action in partition, alleging in her petition:

“That prior to the 21st day of December, 1912, the defendant Ben P. Moore was the owner and in possession of the S. E. 14 of •the S. AV. 14 and the N. % of the S. W. 14 of the N.

W.

14 of section 8, in township 28, range 20, situated in the county of Craig, state of Oklahoma. That on the 21st day of December, 1912, in an action then pending in the district court of Craig county, wherein Clara Moore, the plaintiff herein, was plaintiff, and Ben P. Moore, one of the defendants herein, was defendant, and being numbered 1807, the plaintiff therein by consideration of the court recovered a judgment against the said defendant therein, of the nature following, to-wit, as shown by the minutes of the clerk of said court in said cause: ‘Civil case No. 1807, Clara Moore v. Ben P. Moore. This cause comes *84 on for further hearing. Parties present and by their attorneys. The court decrees to plaintiff for support, maintenance, and education of her minor child, Delbert Leroy Moore, an infant,.five months old, an undivided one-half interest in and to all personal and real property belonging to the defendant, subject to all valid and subsisting liens, mortgages, and incumbrances thereon being and hereby vests the title to tlie said undivided one-lialf interest in and to all of such property in plaintiff for such purposes and uses aforesaid.’

“Tlie plaintiff avers that said judgment is in full force and effect, unappealed from and unreversed.”

It is further alleged that by reason of said judgment the title to the undivided one-lialf interest in the premises described was vested in lier, and that tlie same was not capable of being divided, and praying that the court decree-the respective interests of the parties in the property and order -it sold. and the proceeds divided accordingly.

Tlie Farmers' & Merchants’ State Hank filed an answer alleging that it held a mortgage on said premises in the sum of .$400, that the principal and interest on the same was due and unpaid, and praying that a partition of the property be denied.

Tlie defendant Moore answered alleging that he and the plaintiff were husband and wife at the time of the commencement of said action, and still maintained said relation; that the property described in the petition was his real estate prior to his marriage, and the Farmers’ & Merchants’ State Hank had a mortgage on the same for $400; that the order of court of December 21. 1912. set out as a basis of plaintiff’s action, was void and was not sufficient to vest the title to any part of said real estate in the plaintiff; that the interest attempted tó be decreed to the plaintiff' in said order could only be used for the support and maintenance of the minor child, and for no other purpose; and that tlie said order is subject to modification ; and prayed that the partition be denied and that said action be dismissed at plaintiff's costs. .

A motion was made by the. plaintiff for judgment on the pleadings, which was by the court sustained. The court decreed that the plaintiff do have and recover an undivided one-lialf of said real’estate, for the purposes specified in the decree, and that slie have partition thereof; that the defendant Ben F. Moore is the owner of and decreed to have, title to an undivided one-hall’ interest in said property. The court, however, deferred the appointment of the commissioners to partition the real estate until after the final on filing a supersedeas bond, and also def'er-disposition of the cause in the Supreme Court, if an appeal should be prosecuted, up-red the order in regard to tlie costs and attorney's fees. From that judgment tlie defendants have prosecuted an appeal to this court, and assign two errors: First, because the defendant in error had no legal capacity to sue. and that the petition failed to state a cause of action; second, that the order of the district court, upon which suit was brought, was void.

In support of the first assignment, it is argued that Clara Moore had no right to maintain an action, because slie was a married woman-. The statute section 8868, Rev. Laws 1910, specifically gives her this-right, and reads as follows:

“Woman shall retain the same legal existence -and legal personality after marriage' as before ' * * and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to lier reputation, person. property, character or * * * natural right, slie shall have the. same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband lias to appeal In ■ liis own name alone; Provided that this chapter shall not confer upon tlie wife tlie right to vote or hold office, except as is otherwise provided by law.”

This court, in Enid City Railway Co. v. Reynolds, 34 Okla. 405 , 426 Pac. 198 , In referring to the above statute said;

“A married woman, though living with her husband, has a statutory right to her separate earnings, and a natural right to lier health, strength, skill, capacity to earn; and Under section 8655, Comp-. Laws 1909, she may maintain ail action in her own name for any in-; juries sustained to either her statutory or natural rights.”

In Fiedler v. Fiedler. 42 Okla. 124 , 140 Pac. 1022 . 52 L. R. A. (N. S. ) 189, the first paragraph of (he syllabus reads:

“It is the ])(licy of our constitution and statutes to open the doors of the courts of justice to every person without distinction or discrimination for redress of wrongs and reparation for injuries; and. under our constitution and statutes, a married woman may maintain an action for injuries to either her natural or statutory rights the same as (hough slie were a feme sole, including an action against a former husband for a tort maliciously inflicted during coverture.”

The -second assignment of error is as devoid of merit as the fiirst.

.Section 49(16. lier.

Laws 1910, referring to particular kinds of actions, and the power of the courts therein, provides:

“The court may for good cause shown make such order as mnv In pronm' for lb'1 *85 custody, maintenance, and education of tlie children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.”

The judgment of the. lower court should be affirmed, and the cause remanded for such further proceedings as may be proper.

By the Court: It is so ordered.