The principal embarrassment in this case arises from the difficulty of ascertaining from the prolix and obscure record what was actually decided in the court below.
The decision of that court sustaining the demurrer to the plaintiff's first reply to the first ground of defence was based upon the position that the exception in the statute of limitations of Ohio in favor of a married woman was repealed by the statute of 1870, by which it was enacted that a married woman might sue alone in actions concerning her separate property. That decision was in accordance with an opinion of the majority of the Superior Court of Cincinnati in Ong v. Sumner, 1 Cincinnati Superior Court, 424, which appears to have been the only decision upon the question in the courts of Ohio at the time of the trial of the present case in the Circuit Court. But in Lawrence Railroad v. Cobb (35 Ohio St. 94), the Supreme Court of Ohio has since adjudged that, even if the statute of 1870 withdrew the protection of coverture (a point which it did not decide), yet the action of a married woman was not barred until four years after the passage of this statute; and the construction thus given to the statute by the highest court of the State should be followed by this court. Tioga Railroad v. Blossburg & Corning Railroad, 20 Wall. 137; Kibbe v. Ditto, 93 U.S. 674; Fairfield v. County of Gallatin, 100 id. 47.
It follows that the order sustaining the demurrer to the plaintiff's first reply was erroneous, and that the judgment below in favor of the defendant must be reversed, unless it clearly appears that the plaintiff was not prejudiced by the error. Deery v. Cray, 5 Wall. 795; Knox County Bank v. Lloyd, 18 Ohio St. 353.
To the first ground of defence stated in the answer, namely, that the cause of action did not accrue within four years, the plaintiff had made two replies: the first, in the nature of confession and avoidance, that she was a married woman; the second, in the nature of a traverse, that the action did accrue within four years. This allegation of fact in the second reply cannot affect the issue of law raised by the defendant's demurrer to the first reply. After that demurrer had been sustained, the case, as was assumed and contended by the learned counsel for the defendant at the argument, presented three issues: First, Whether the cause of action accrued within four years. Second, Whether there had been a payment, as alleged in the second ground of offence. Third, Upon the third ground of defence, which included a general denial of all the material allegations in the petition.
A verdict of a jury, or, where a trial by jury is waived, a finding by the court, upon any one of these issues, would be sufficient to sustain a general finding for the defendant, and would render the other issues of fact immaterial. The bill of exceptions merely states generally that 'the court found for the defendant;' and the statement in the record, that under a submission 'upon the issue joined' the court found 'the issues' to be in favor of the defendant, is too ambiguous to enlarge the effect of the general finding as stated in the bill of exceptions.
The sustaining of the demurrer to the plaintiff's first reply deprived her of the right to insist upon the ground of at ion, which was open under the petition, that the defendant, more than four years before the action was brought, permitted and procured the transfer upon its books to other persons of shares of which the plaintiff held the certificate (Bank v. Lanier 11 Wall. 369; Telegraph Company v. Davenport, 97 U.S. 369); and limited her, so far as regarded the first ground of defence, to proof of a cause of action accruing within the four years. The general finding in favor of the defendant may have proceeded solely upon that ground of defence, without touching the second and third grounds.
The defendant therefore fails to show that the error in sustaining its demurrer did not prejudice the plaintiff, and consequently the judgment must be reversed and a
New trial ordered.
MR. JUSTICE MATTHEWS did not sit in this case.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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