Hawke & Bro. v. Urban

18 Iowa 83 | Iowa | 1864

Cole, J.

1. Venue: husband and wife. The correctness of the order awarding a : change of venue, is the only question presented « , . for our determination.

Our statute declares (Rev., § 2800) that except where otherwise provided, personal actions must be brought in a county wherein some of the defendants actually reside. It is then provided (§ 2795) that certain actions may be brought in the county in which the subject of the action is situated, and among others, actions for the foreclosure of a mortgage, or for the sale of real property under any incumbrance or charge. The statute further provides (Rev., §2802) for a change of venue, when brought in the wrong county.

If this is a personal action, the order for a change of venue was correctly made; but if it is properly brought for the sale of real property under any charge, then the ■order was erroneous.

At common law the wife could not be sued in a personal action; but as to her rights and liabilities, both at common law and under our statute, generally and fully, see Jones v. Crosthwaite, 17 Iowa, 393, and Patton v. Kinsman, Id., 428, and authorities there cited. The only contracts upon which a wife may be made liable in a personal action, under our statute (Rev., §§ 2505, 2506) are those made by a wife in relation to her separate property, or those purporting to bind herself only.

But it is provided (Rev., §2007) that the expenses of the family, the education of the children, and such other objects as come within the equity of this provision, are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly, or the husband separately.

This action was brought in equity against the husband and wife, jointly, to recover judgment for provisions, clothing, &c., properly included in the term, “ expenses of the family,” and certainly within the equity of the provision, and to make the same chargeable upon the property of the wife. Without now deciding directly, that the wife or her property could not be liable in any other action, we have no hesitation in holding that this action, being brought to foreclose a eharge upon real property, was properly brought in Mills county where the land was situated.

The order for the change of venue will, therefore, be reversed and the cause remanded, with directions to proceed in the action in the county of Mills.

Reversed.