Bedsworth v. Bowman

31 Mo. App. 116 | Mo. Ct. App. | 1888

Hall, J.

The defendant as sheriff had levied on certain personal property under an execution issued on a judgment against Lamar Bedsworth for a debt created for necessaries for his wife, Louisa Bedsworth, and her family. The wife was not a party to the suit in which the judgment was rendered. The property seized by the defendant was, under section 3296, Revised Statutes, but not otherwise, the separate property of the wife. This action was instituted by the wife and the husband for the claim and delivery of the wife’s property thus seized and detained by the defendant.

The section of the statute above mentioned, after declaring what personal property belonging to a married woman shall be her separate property, provides as follows: “But such property shall be subject to execution for the payment of the debts of the wife contracted before marriage, and for any debt or liability of .her husband, created for necessaries for the wife or family.” The circuit court held' that, in order to subject the wife’s separate property under the statute to execution for’ the payment of her husband’s debt created for necessaries for her or her family, it is necessary to make her a party defendant to the suit in which the judgment is rendered on such debt, and that, therefore, the execution in this case was no authority for the defendant’s action in levying upon and detaining the separate property of the female plaintiff.

This court has, in the case of Gabriel v. Mullen, 30 Mo. App. 464, announced the same conclusion. The subject is fully discussed in that case, and the process-necessary to subject the wife’s separate property to the payment of the husband’s debt for necessaries for her or her family is therein pointed out. I dissented from the opinion of the majority of the court in that case. The judges concurring in that opinion still adhere to it, and in accordance with it the judgment of the circuit court will be affirmed.

From this conclusion I dissent because I think it essentially wrong and because I believe it in conflict with Alexander v. Lydick, 80 Mo. 341.

The result is that the judgment of the circuit court is affirmed, but since I think this result in conflict with, the decision of the Supreme Court in Alexander v. Lydick, supra, it is ordered that the original transcript and all other papers on file in this case be certified to the Supreme Court in order that the case may be there finally determined, and that all proceedings on the judgment of this court be stayed until the final determination of the case by the Supreme Court.