75 Mo. App. 500 | Mo. Ct. App. | 1898
This is a suit upon a promissory note against one John T. Shores and wife, the plaintiff in error being the wife, Susan A. Shores. The petition is as follows:
petition. “Plaintiff, for his cause of action, says that defendant John T. Shores, on the first day of January, 1894, by his promissory note of that date, by him . duly executed, promised for value received, to pay to plaintiff, one day after date thereof, the sum of one hundred and eighty-five dollars and five cents ($185.05), with interest from date, at the rate of 8 per cent per annum; said note being filed herewith and marked exhibit ‘A’; that on the first day of March, 1895, defendant paid to plaintiff (setting out certain payments) but defendant has failed, and still fails and refuses to pay the*502 balance of said note, or any part thereof, and said balance still remains due and unpaid. Plaintiff states that defendant, John T. Shores, husband of his codefendant, is insolvent, andthenote hereinbefore described can not be collected from him; that defendant, Susan A. Shores, had, at the time the note herein described was executed, a separate estate, consisting of certain lands lying and being in Kelly township, Cooper county, Missouri; that defendant Susan A. Shores, has a separate estate, consisting of a farm lying and'being in Prairie Home township, Cooper county, Missouri, which said farm is described as follows (describing it).
“Plaintiff states' that said farm last above particularly described was received in trade as the sole and only consideration for defendant Susan A. Shores’ farm, which she owned at the time the note herein was executed, and which is situate in Kelly township, Cooper county, Missouri; and which she traded, exchanged and bartered for the farm that she now owns, and which is situate in Prairie Home township, Cooper county, and herein particularly described; that defendant Susan A. Shores, has a large amount of personal property in Cooper county, Missouri. Plaintiff states that said note was given to secure the payment of a store account, consisting of dry goods, groceries, etc.; that said account was created for necessaries furnished the wife and family of him, the said John T. Shores, husband of defendant Susan A. Shores. Wherefore plaintiff asks judgment for the amount of said note and interest and for'costs.”
“It is therefore ordered and adjudged by the court that the plaintiff have and recover of the defendants the said sum of one hundred and ten dollars and one cent ($110.01), together with his costs and charges in this behalf laid out and expended, and that execution issue therefor. It is further adjudged and decreed by the court that the said sum of one hundred and ten dollars and one cent ($110.01), so found to have been created for necessaries, as aforesaid, furnished the wife and family of the said John T. Shores, be, and the same is hereby, declared- a lien upon the separate estate of defendant Susan A. Shores, in and to the real estate hereinbefore described, and it is ordered that a special Jieri facias issue against the same in favor of the plaintiff herein.”
The only difference made by the amendment was in adding the last proviso requiring the wife .to be made a party and for certain recitations in the judgment. The amendment was doubtless the result of the action of the supreme court in the ease of Gabriel v. Mullen, 111 Mo. 119, wherein the cases of Bedsworth v. Bowen, 104 Mo. 44, and Gabriel v. Mullen, 30 Mo. App. 464, were overruled.
All concur.