Arosmith v. Plummer

Decided February 9, 1873

Court of Appeals of Kentucky · decided 1873-02-09

Replevin. — Title. Sufficiency of evidence of title to tne property sought to be recovered. Husband and Wife — Action by Wife in Name of .Husband. A wife was held not to show a right to prosecute an action in the name of her husband under section 51, Code of Civ. Prac.

Decided 1873-02-09

¶1Opinion by

Judge Lindsay:

¶2There are two controlling- and all sufficient reasons why the judgment in this case should be affirmed.

¶31st. There is no evidence tending to show that the title to the mare was in Johnson-Young instead of the defendant Plummer,-except the judgment in the case of Smith v. Young, to which Plum-mer was no party, and of the prosecution of which, so far as appears from this record, he had no notice. It follows, therefore, that said judgment is not evidence against him.

¶42d. Appellant shows by her pleading that she is a feme covert and that she has no authority from her husband to prosecute this action in his name, and the testimony, instead of showing that her husband had deserted his family, as required by the 51st section of the civil code of practice tends to show that appellant deserted him.

¶5Wherefore the judgment is affirmed.