home on a day other than the true one is another strong circumstance against the defendant.

And now, taking these circumstances in connection with other minor circumstances in the case, is not the guilt of the defendant shown beyond all reasonable doubt? The jury by whom he was convicted thought so, and we see no reason for disturbing their verdict.

The judgment is affirmed.

O'NEIL v. PERCIVAL et al.

(Supreme Court of Florida. March 4 1889.)

1. HUSBAND AND WIFE-SEPARATE ESTATE OF WIFE.

Real estate purchased by a married woman, and to whom a deed thereof is made, is her separate legal property.

2. SAME-LIABILITY FOR IMPROVEMENTS.

When a married woman, who is the legal owner of real estate, purchases, with the consent and co-operation of her husband, materials to be used for the construction of improvements thereon, and the materials have been thus used, a court of equity may apply the rents and income of the property to payment for such materials, and appoint a receiver for this purpose.

3. APPEAL

WHAT REVIEWABLE-INTERLOCUTORY ORDERS.

Upon an appeal taken by a complainant from a final decree dismissing a bill in equity, an interlocutory order adjudging certain of the defenses urged against the bill to be insufficient will be reviewed at the instance of the defendants, though they have not appealed.

4. JUDGMENT-RES ADJUDICATA.

A judgment dismissing au action at law as to one of the defendants therein because the court of law had no jurisdiction of the cause, and as to the other defendant on account of an improper joinder of defendants, is not a bar to a subsequent suit in equity brought to subject the property of the former defendant, a married woman, to the payment of the same cause of action. Such judgment at law is not a judgment on the merits of the plaintiff's claim as to either of the defendants. (Syllabus by the Court.)

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

On rehearing. The first opinion in this case was filed December 14, 1886, and a petition for a rehearing was filed December 21, 1886. The petition was granted January 22, 1889.

Randall, Walker & Foster, for appellant. A. W. Cockrell & Son, for appellees.

RANEY, C. J. This is a suit in equity to subject the statutory real estate of a feme covert to payment for materials furnished for the erection of improvements thereon, and used for such purpose.

Prior to the institution of this suit the appellant had begun and prosecuted, with the result hereinafter indicated, in the circuit court of Duval county, an action at law against the appellees on the same cause of action now sued on. The declaration alleged that the materials were furnished by the appellant under a contract made by him with Percival, and ratified by Mrs. Percival, and were used in the construction of the building on the lot in question, and that this was the purpose for which they were furnished; that he filed in the office of the clerk of the circuit court of Duval county, on February 7, 1884. and within the time prescribed by the statute, a notice of his intention to hold a lien on said building, and on the interest of Mrs. Percival in the land on which the same stands, for the amount of his claim; that though Mrs. Percival promised to pay said amount, neither she nor her husband had done so. It prays a judgment of the court directing a sale of the property for the satisfaction of the plaintiff's lien and costs, and a judgment against the defendants for the amount due.

In the declaration there were also counts for money due for work and materials furnished for defendants by plaintiff, and for money found to be due

from defendants to plaintiff upon an account stated, with the ordinary conclusion as to the amount claimed.

To this declaration, and each count thereof, Mrs. Percival demurred, among other grounds, because she was, at the time of making the alleged contract, and still continued to be, a married woman, and in law incapable of making any valid executory contract enforceable by suit at law; and because the declaration showed that at the time the alleged contract was made she was a married woman, and the owner of the premises upon which a lien was sought to be created by virtue of said alleged contract.

Percival demurred, among other grounds, because, in respect to Mrs. Percival, the action was a proceeding in rem, in which no personal judgment might be rendered, and in respect to himself it was a proceeding for a personal judgment, and hence there was a misjoinder of defendants. Orders were made sustaining the demurrers as to the grounds stated.

The final judgment is as follows: "Come now the parties by their attorneys in this cause into open court, and the several demurrers of the defendants touching the liability of defendant Fannie B. Percival, who is a married woman, having been sustained by the court, and it appearing to the courttherefrom that this court is without jurisdiction to entertain the plaintiff's claim against said Fannie B. Percival, and the demurrer of said defendant that there is a misjoinder of defendants having also been sustained by the court, the plaintiff declining to amend his declaration in this respect, it is therefore considered by the court that the cause of said plaintiff be dismissed out of said court, and the defendants go hence without day, and have and recover of plaintiff their costs."

These proceedings at law are set up by Percival in a plea, and by Mrs. Percival in her answer, as a defense to this suit. They were adjudged to be insufficient as a defense by the circuit court.

It is clear that the purpose, meaning, and effect of the judgment of the circuit court in the action at law were to dismiss the action as to Mrs. Percival on the ground that the court, as a court of law, had no jurisdiction to entertain the suit against her, she being a married woman, and, as to Percival, to dismiss it because of an improper joinder of parties. There is as to neither defendant any judgment upon the merits of any claim set up in either count of the declaration.

It is true that in addition to adjudging that the "cause" of the plaintiff be "dismissed out" of the court for the reasons indicated by the judgment, the words "and the defendants go hence without day" are added; but to give to the latter words the purpose or effect of an adjudication upon the merits of the claim as to either Percival or his wife would be entirely antagonistic to the plain meaning of the judgment considered as a whole, which, as to Mrs. Percival, is that the court had no jurisdiction of the cause, and, as to her husband, that the claim was sued upon in a manner not entitling it to be considered upon its merits by the court, and that he had refused to amend his proceedings, and hence a dismissal of his case as to both defendants. Agnew v. McElroy, 10 Smedes & M. 552.

No judgment can be available as an estoppel unless it is a judgment on the merits. Freem. Judgm. § 260. Judgments of nonsuit, non pros., of nolle prosequi, of dismissal, and of discontinuance are exceptions to the general rule that, when the court and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried, Id. § 261. Though a judgment on denurrer on the ground that the declaration does not state facts constituting a cause of action may be a judgment on the merits, (Id. § 267,) it is clear this is not a judgment upon such ground.

Where the record of the judgment at law set up as a bar to a suit in equity shows that the court of law did not have jurisdiction of the case, there is no

estoppel. Mosby v. Wall, 23 Miss. 81, and Peques v. Mosby, 7 Smedes & M. 340. The dismissal of a bill in equity because the case made by the bill is one cognizable at law does not bar an action at law on the same cause of action, nor does a dismissal at law, because the case is one of equitable jurisdiction, bar a subsequent suit in equity.

The proceedings at law are no bar to this suit, and the chancellor did not err in so holding. In O'Neil v. Percival, 20 Fla. 937, (an appeal from the judgment in the law proceedings referred to,) where the principle adjudicated is that the statute of this state relating to mechanics' liens, and authorizing an executory contract to be followed by a personal judgment, does not embrace married women, the court say that it as a matter of course, does not propose by anything said to determine the rights of O'Neil, when he shall seek "a court of equity as a forum in which to establish an equitable charge."

In the opinion filed prior to the rehearing it was held that the ruling of the circuit judge upon the above proceedings at law as a defense to the suit in equity could not be considered on this appeal, in view of the fact that neither Percival nor his wife had appealed. Having become satisfied that this was error we granted a rehearing. Trust Co. v. Cole, 4 Fla. 359; Fairchild v. Knight, 18 Fla. 770; Foster v. Ambler, 24 Fla. --, ante, 263.

The petition for rehearing is based solely upon the omission of this court to consider the defense of res adjudicata just passed upon; yet, as the membership of this court had undergone such a material change since the former opinion was filed, we concluded that it would be proper to rehear the entire case, and have done so.

The contention of counsel for appellees that there has been an adjudication that Percival was not personally liable for the materials furnished by appellant is overthrown by the conclusion we have announced above, and this removes one of the main premises of his argument.

In Schnabel v. Betts, 23 Fla. 178, 1 South. Rep. 692, we held that the insolvency of a husband is not a necessary condition to the power of the wife to charge her real estate for improvements thereon. The bill before us does not, even if it properly could do so, seek to bind Percival personally for the materials. There is nothing in the decisions of this state from which, considering the cases as entireties, it can be inferred that the court considered a personal liability on the part of the husband to be essential to an equitable charge of the wife's statutory or legal real property, or the rents and profits of the same, for improvements made on such property. His participation in the transaction before us is sufficient to commit him to an application of the rents and profits of the wife's property to payment for the improvements. Being satisfied with the correctness of the view of the court, as expressed in the former opinion by Chief Justice MCWHORTER, as to this branch of the case, we adopt the second and subsequent paragraphs of that opinion, in so far as they relate to it, and they will be reported as our opinion in the premises at this point of this opinion:

"The bill alleges that complainant is the sole surviving partner of Penniman & Co., carrying on the business, in the county of Duval, of manufacturing lumber.

"That in the month of February, 1883, orator agreed with Mrs. Percival, for a certain price agreed on, a part of which was to be paid in advance, to furnish materials for the construction of a house to be erected upon certain real estate owned by her, in the city of Jacksonville, to-wit, upon lot No. 5, in block No. 80, in said city; that the portion of said price agreed on to be paid in advance having been paid, your orator, between the 26th day of February, 1883, and the 15th day of January, 1884, delivered a large quantity of material, which was used in the construction of the said house, and that said house now stands completed on said lot.

"Your orator further shows that said materials were furnished, and have

been used, for the improvement of the separate estate of the said defendant Fannie B. Percival, and, in consequence, said estate has been greatly improved and increased in value; that said materials were furnished by orator upon the credit of the aforesaid separate estate; that on the 29th day of December, 1883, an accounting was had between orator and Mrs. Percival for the said materials furnished, at which accounting there was found to be due $550, for which Mrs. Percival gave orator her promissory note, to fall due thirty days after date, of which no part has been paid; that Mrs. Percival is the owner in fee of said lot No. 5, in block No. 80, in said city; that Mrs. Percival is a married woman, the wife of Alexander K. Percival, the other defendant in this suit. "The bill prayed a decree for the sale of said lot and building for the satisfaction of complainant's claim.

"The defendant Fannie B. Percival filed an answer to the bill. The answer alleged that she married her co-defendant, A. K. Percival, on the 4th day of September, 1879, and that said A. K. Percival was, at the time of said intermarriage, and still is, a citizen of Florida; that the east half of said lot was conveyed to her December 14, 1879, by one Jeffreys; that on the 20th of July, 1880, the west half of said lot was conveyed to her by one Hopkins, and that she holds a legal title to said lot.

"The answer denies that she, or any person for her, contracted with complainant as alleged, or that any of the materials for building were furnished to or received by her; but admits, upon information and belief, that certain material furnished by complainant was used in the construction of a building on said lot.

"The answer sets forth very fully the nature of the estate held by Mrs. Percival in the lot sought to be subjected to the payment of complainant's claim. It is her separate property, by virtue of the statute of March 6, 1845, (McClel. Dig. 754, 755, and section 26, art. 4, Const.) It is unnecessary to decide what interest her husband has in such property, or the effect of the constitutional provision upon said statute. The answer shows that it is not an equitable but a legal estate vested in Mrs. Percival.

"The next inquiry is. are the facts set forth in the bill sufficient to authorize the court to declare that the claim of complainant is a proper charge against said property? Whatever might be the opinion of the court as to the power of the wife to charge her legal estate in any other manner than the one authorized by the statute, if it were an open question, we are of the opinion that it is settled in this state that she can so charge it for any debt incurred by her for the benefit and improvement of said property. Blumer v. Pollak, 18 Fla. 707; Staley v. Hamilton et ux., 19 Fla. 275; Harwood v. Root, 20 Fla. 940. "The allegations and proofs show that Mrs. Percival was, at the time of the filing of the bill, the owner of the property sought to be subjected, and that the debt incurred to the complainant was for its improvement, and that such improvement enhanced its value; that complainant delivered the building materials with the understanding that they were to be used in erecting a building on Mrs. Percival's lot, on the assurance of her husband, who stated to him that he was out of business, had no means or cre lit, and that he was acting as agent for his wife, and that the complainant charged the materials delivered on his books to A. K. Percival, agent of Fannie B. Percival; that he agreed to extend the credit on the understanding that Mrs. Percival's property was hable therefor. She admits that she knew of these improvements being built on her property. After the completion of the building she stated to complainant that she generally did in business matters whatever her husband advised, and, upon an accounting with complainant, gave him her note for $550,-the balance due him for the materials used in the construction of the house; the account having at the time been looked over and explained to her by her husband and complainant. These facts bring the case within the operation of the rule laid down by this court in the cases above cited. We are

of the opinion that this property should be held responsible for the payment of the complainant's debt.

'Without meaning to admit that the corpus of the estate of a married woman cannot be sold for the payment of a debt of this character, we think that in this case the rents and profits of the property should be subjected to its payment.

"The decree is reversed, and the case remanded, with instructions to appoint a receiver to take charge of said property, and collect the rents thereof, until the amount is sufficient to pay the complainant's claim, with interest, and all the costs of these proceedings."

HADDOCK v. WRIGHT et al.

(Supreme Court of Florida. March 18, 1889.)

ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY.

H. and two others made their promissory note payable to J. R. H., or bearer, upon which R., the bearer, brought suit. Process was served on W. only. At the appearance term, 1861, an attorney at law appeared for the defendants, and continued to appear for them until 1867, when judgment was rendered against the defendants. Execution issued, and there were sales of land thereunder at different times from 1871 till 1887. The regularity of the proceedings was not questioned till more than 26 years after the commencement of suit, and more than 20 years after the rendition of the judgment, when, after the death of the attorney, H., (in an action of ejectment instituted against R. to recover a part of the land sold,) without offering to show that he had a meritorious defense to the note, or that he had not previously known of the former judicial proceedings and sales thereunder. proposed to show, by his own oath, that he had not been served with process in the former action, and had never employed or authorized the attorney to appear for him therein. This evidence was excluded. Held that, under the circum-· stances, there was no error in excluding the evidence so offered by H.

(Syllabus by the Court.)

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

J. B. Christie and A. W. Cockrell & Son, for appellant. C. P. & J. C. Cooper, for appellees.

MITCHELL, J. The appellant in this cause, plaintiff below, instituted ejectment proceedings in the circuit court of Duval county against the appellees. defendants below, to recover certain real estate situate in the city of Jacksonville. At the trial the plaintiff introduced evidence tending to show that he was entitled to recover the land in question, and then rested his case. The defendants then offered in evidence what purported to be an exemplification of the record of a judgment recovered at law in the circuit court of Duval county by the defendant C. L. Robinson against the administratrix of James L. Winter, deceased, and the appellant, J N. Haddock, and John G. Haddock, execution issued thereon, and the sheriff's deed made under said proceedings, under which deed title was claimed by Robinson, one of the defendants; and also the original records of said proceedings. To the introduction of this evidence the plaintiff objected, but the objection was overruled, and the evidence admitted. The plaintiff then proposed to show by his own oath that he had never been served with process in the case of C. L. Robinson v. James L. Winter et al., and that he had never employed or authorized Wheaton or any one else to appear for him in said cause, which evidence so offered was excluded by the court. It was then in open court stipulated, by the attorneys of the respective parties, that the said land (the land sued for by the plaintiff) was a vacant and unfenced lot in the town of La Villa until July, 1886, and that the defendants took possession thereof and fenced the same in July, 1886, and not before. The plaintiff, being dissatisfied at the ruling of the court in excluding evidence offered by him, and in admitting evidence offered by defendants, took nonsuit, and appealed.