Jones v. Glass

48 Iowa 345 | Iowa | 1878

Adams, J.

husband and wife: wife The appellant contends that, under the Revision of 1860, the wife did not become personally liable for family expenses where the indebtedness was con-traeted by the husband. The provision upon this subject is to be found in section 2507, and is in these words: “The expenses of the family * * * * * * * * * .are chargeable upon the property of both husband and wife, or ■either of them, and in relation thereto they may be sued jointly, or the husband separately.” This is substantially the same as section 2214 of the Code, except that the latter provides that either may- be sued separately. Under the Code .this court has held that the wife is personally liable. Smedley v. Felt, 41 Iowa, 588; 43 Iowa, 608. If she was not personally liable under the Revision, her personal liability under the Code must result from the provision that she may be sued separately. But we understand this provision to relate to a mere matter of practice. We do not think it should determine the character of the judgment as personal or otherwise. If a personal judgment can be rendered against her when sued separately, we think it might when sued jointly with her husband. The question presented to us in this case, therefore, seems to us to be substantially determined by Smedley v. Felt, above cited.

But it is urged that a joint action cannot be maintained, because the husband has been discharged in bankruptcy, and that under the Revision, which was in force when the debt was contracted, none but a joint action can be maintained. If, however, the change made by the Code is designed merely to regulate the practice, and does not affect any substantial right, then the Revision would not control the form of action in that respect. We think that the wife became personally liable, and that, at the time the action was brought, she was subject to be sued separately. If so, an action can be maintained against her, notwithstanding her husband’s discharge.

Aeetrmed.