On Motion to Dismiss.
The opinion of the Court was delivered by
Bermudez, C. J.The ground relied on, is that the plaintiff, who is a married woman, has brought this suit and appealed from the judgment dismissing it, without authorization, either from the husband or from the Court.
The objection to this want of authority was not pleaded in limine, or before trial on the merits of the case, which were put at issue by an answer. It is urged on appeal, for the first time.
*823The record shows that the husband of plaintiff was present in court while the trial was progressing, and that he signed the bond of appeal furnished by Ins wife.
The policy of the law in requiring marital, or when it is refused, or -cannot be obtained, judicial authorization in suits by or against married women, is double, not only, for the prevention of ill advised litigation ; but also for the protection of the other party to the suit, who has a right to claim that the judgment to bo rendered be binding on the wife.
The facts in 22 Ann. 204, are not analagous to those of the present case. Tiie record did not show there as it does here, that the husband had attended the trial.
In a subsequent ease, our immediate predecessors, reversing the first judgment therein of the previous court, by which the ruling in 22 Ann., had been made, and somewhat departing from it, held that the signing of the appeal bond by the husband as agent of his wife might not of itself suffice as his authorization, but that his active agency in the suit was proof that it was prosecuted with his approbation and assistance, .and coustinnted authorization. Jones vs. Henry, Manning’s Unrep. C. p. 65; O. B. 46, fol. 360.
In a more recent case, the present court held that the signature of •the appeal bond by the wife’s counsel, as attorney for the husband in the absence of proof of special authority to him, to that end,—was insufficient to justify the deduction of marital authorization to prose-cute the appeal. The opinion strongly implies that, had the special power been shown, the appeal woidd have been sustained. Gibson vs. Hitchcock, 35 Ann. 1201; O. B. 57, fol. 815, N. R.
After a snivey of all the authorities bearing on the subject, the rule may fairly be announced to be : Whenever the record shows that the litigation is sanctioned by the husbaud, and however this appears, the right of the wife to stand in court for further prosecution or defense should be recognized.
In the present instance the denial of marital authorization was not at all urged in the lower court, either before or after the joining of issue. Had it been that plaintiff failed to adduce proper evidence of it, the case would have presented a quite different feature.
The judgment appealed from is not one of dismissal for want of such authority. It is a judgment which passes on the issues presented on •the merits of the contention.
*824Had the judgment been one of dismissal for want of authority and was there not in the record sufficient proof of such sanction, the objection would have presented a grave difficulty.
But it is apparent, not only that the point was not raised below, but also that the husband attended in person the trial of the case before thelowei court, and sanctioned the appeal, signing- with his wife the bond furnished to perfect it. Clearly then, the litigation is approved by the husband and the judgment to be rendered on the merits will conclude: her.
To dismiss the appeal would serve no useful purpose.
Interest reipublica ut sit finis litium.
Motion overruled.