dissenting.
I think the judgment of the County Court was void, and should have been reversed on appeal.
Mrs. Emma Harris, a married woman, instituted a replevin suit in her name and in her own behalf for the purpose of recovering possession of part of her separate statutory personal property. A replevin bond was executed by Mrs. Harris as principal and O. D. Groff and J. M. Stansfield, as sureties.
The defendant filed three pleas, one of which was a plea in abatement, that set out that Mrs. Harris at the time of the institution of the replevin suit was a married woman, and that she had instituted the suit in her own name and on her own behalf, contrary to law. The attorney for Mrs. Emma Harris attempted to cure the fatal *800defect pointed out in the plea in abatement, by filing a motion asking that her husband, R. T. Harris, “be joined with her as a party plaintiff to said suit and proceedings in replevin brought thereunder, the said amendment to date back to the time of the institution of the said suit, and apply to all proceedings that have taken place throughout the course of said suit.” This motion was granted.
Mrs. Harris was not authorized by law to bring this suit in her own name, and the joinder of her husband in the action was necessary before the court acquired jurisdiction of the cause.
Sec. 2566,- Revised General Statutes, provides: “It shall be the duty of the court, at any time before the trial of any cause to order that any person not joined as plaintiff in such cause shall be so joined; * * * if it shall appear to such court or judge * * * that the person to be added as aforesaid consents, either in person or by ‘writing or by attorney, to be so joined.”
This statute does not contemplate that a person who may not desire to be a plaintiff in a suit can be forced to become so, at the will of any party instituting the suit.
There is nothing in the record to show that Mrs. Harris’ husband, Mr. R. T. Harris, consented “in person or by writing or by attorney” to be joined as a party to the suit, but the plaintiff sought to drag him into the case noiens volens.
As he was not made a party plaintiff in the manner provided by the statute, he never became a party plaintiff, and the order of the County Judge making him a party plaintiff without his consent, was not authorized by the statute and was void.
*801The case presented by the record is that of a married woman conducting to final judgment a replevin suit in her own name without her husband being a party plaintiff. In such a proceeding the judgment of the court that the “Defendant, J. S. Sweet, do have and recover of and from the said Mrs. Emma Harris, joined by her husband, R. T. Harris, Plaintiffs, and O. D. Groff and J. M. Stansfield, the Sureties on the Plaintiff’s Bond, the possession of the goods and chattels described in the Plaintiff’s Declaration, * * * and recover of and from the said Mrs. Emma Harris, joined by her husband, R. T. Harris, Plaintiffs, and O. D. Groff and John M. Stansfield, the Sureties on the Plaintiff’s Bond, the sum of One Hundred Twenty-five and no/100 Dollars, ($125:00) for the damages in this behalf recovered, together with the further sum of $14.55 for his costs in this behalf expended” is' a nullity.
It is beside the question to say that if the judgment for damages against her, and her husband is invalid, no harm is done them because it cannot be enforced against either of them.
The question involved is fudamental, and involves the right of a married woman to conduct a suit in replevin without her husband being a party. Such procedure is not known to our law, and a judgment on such a suit cannot affect the rights of any one.