65 Neb. 359 | Neb. | 1902
Lead Opinion
On tbe 23d day of February, 1900, tbe plaintiff commenced a suit in the district court for Dodge county against the defendant by filing tbe following petition (omitting title) :
“Comes now tbe plaintiff and for cause of action herein states:
“1st. Tbe plaintiff is now and for more than seven years last past has been a duly authorized and practicing physician in Fremont, Dodge county, Nebraska.
“3d. Thereafter on. October 31, 1899, judgment was recovered against said William A. Lucas by the plaintiff herein for $38.50 in Howells county, Missouri, where said defendant and William A. Lucas her husband, then resided and where they still reside.
“1th. Thereupon a transcript of said judgment was filed in the circuit court of said Howells county, Missouri, the same being a court of general jurisdiction and of the same jurisdiction and powers as the district court of Nebraska, and an execution issued thereon commanding the sheriff of said county to levy the same upon the goods, chattels, lands and tenements of said William A. Lucas. Said execution was thereafter returned by the said sheriff with his return thereon showing no. property, goods, chattels, lands or tenements of said William A. Lucas could be found in said county upon which to levy.
“5th. The defendant herein is, and for more than ten years last past has been the wife of said William A. Lucas. And at the time of furnishing said medicine and medical attendance the defendant herein and the said William A. Lucas were living together in Fremont, Nebraska, as husband and wife.
“6th. Said medicine and medical attendance were necessary for the defendant’s family.
“7th. No part of said-judgment and no part of the value of said medicine and medical attendance has been paid and the whole thereof is now due and payable.
“8th. There is now due and unpaid from defendant to plaintiff upon said judgment and for said medicine and-medical attendance the sum of $38.50 and interest thereon from July 1, 1897.
“9th. At the time of furnishing said medicine and medi
“10th. Neither the defendant nor said William A. Lucas have any personal property within Dodge county, Nebraska, nor within the state of Nebraska, and the said William A. Lucas has no real estate in Dodge county, Nebraska, nor in the state of Nebraska.
“Wherefore plaintiff asks judgment against the defendant for the sum of $38.50 with interest thereon at seven per cent, per annum from July 1, 1897, and costs, and that said judgment be decreed to be a lien upon said real estate, and for such other and further relief as equity may require.”
At the same time he procured an attachment to be issued and levied upon the property of the defendant, situated in said county, and thereupon obtained service against her by publication. She appeared in the case, and filed a general demurrer, which was overruled, and thereafter she filed an answer to the petition, in which she admitted the third and fourth paragraphs thereof, and denied all of the other allegations therein contained. She further answered as follows: “Further answering for another and further defense this defendant avers the property in this action attached being lot 4 of block 3, of East Side addition to the city of Fremont, lot 5 in said block 3 and lot 6 in said block 3 is the sole and separate property of the defendant, and was acquired by her through and by means of a conveyance of the same to her from persons other than her said husband, William A. Lucas; and that the same is not liable for the debts of the said William A. Lucas.” Upon the issues thus made the cause was tried to a jury. At the close of all of the evidence the court held that the medical services, which were the basis of the plaintiff’s cause of action, were not necessaries furnished the family of the said defendant; that
1. The plaintiff contends that the medical attendance and services in question furnished by him to the defendant’s husband, were necessaries furnished the family of the defendant, within the meaning of section 1, chapter 53, of our statutes. It was established on the trial that at the time the plaintiff attended the defendant’s husband they resided together at their home in Fremont, Dodge county, Nebraska, and were maintaining their home and family relations as husband and wife; that the members of the family were William A. Lucas, his wife, the defendant herein, and defendant’s mother; that the said Lucas was ill with rheumatism and unable to get about or help himself in any particular: It would seem that the medical attendance necessary to cure defendant’s husband of his illness and thus place him in a position to labor, and support the family, herself included, was a necessary furnished for its benefit. The husband, although the head of the family, while living with his wife, maintaining the family relations and keeping up the home, is certainly a part and a member of it. There can be no doubt but that the defendant would be liable as surety for her husband for the necessary food furnished the family, himself included. It would seem to be necessary, and for the benefit of the family, that the husband be cured of his temporary
2. Plaintiff claims that he has complied with the statute; that he procured a judgment against the defendant’s husband; caused an execution to be issued thereon; and that the officer had returned the same unsatisfied, for want of goods and chattels, lands and tenements whereon
Commissioner’s opinion, Department No. 3.
We therefore hold that there has been sufficient compliance Avith the requirements of section 1, chapter 53, of our statutes, to authorize the plaintiff to maintain this action against the defendant; that the trial court erred in directing the jury to return a verdict for the defendant. We therefore recommend that the judgment of the district court be reversed and the cause remanded for a neAV trial.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for a new trial.
Reversed and remanded.
Rehearing
The former opinion, delivered by Commissioner Bakhes, of the Second Department, will be found on page 359, amte, and is so full in its statement of the facts that nothing further in that respect is needed. The statute before us for construction is in the following words: “The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise or the gift of any person except her husband, or which she shall acquire by purchase or otherwise, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts; Provided, That all property of a married woman not exempt by law from sale on execution or attachment shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands, and tenements whereon to levy and make the same.” Compiled Statutes, ch. 53, sec. 1. As we understand from brief and oral argument of counsel for defendant in error, two objections are urged against the construction given to the statute in the former opinion: First, that it is erroneous in holding that it was intended to make the property of the wife liable for necessaries furnished the husband alone, and for his individual use; second, that it is wrong in holding that the return of
The defendant in error relies largely on Gabriel v. Mullen, 30 Mo. App., 464, in support of her theory that medical services rendered exclusively to the husband are not “necessaries for the wife or family,” within the meaning of the Missouri statute, which is practically like our own except in the method provided for enforcing the claim against the property of the wife. Even if the reasoning in that case were satisfactory, it can no longer be
2. Was a judgment against the huband obtained in Missouri, and the return of an execution unsatisfied “for want of goods, chattels, lands and tenements whereon to levy and make the same,” a sufficient compliance Avith our statute before proceeding against the wife to collect the indebtedness? We think it Avas. It must be borne in mind that the debt Avas contracted AAdiile the husband and wife were residents of Nebraska. Had they remained residents of this state, and an unsuccessful attempt been made in the courts of this state to enforce the debt against the husband, no question is made that the property of the AAdfe would be liable. The husband had no property here which could be reached by the process of our courts, and
We are satisfied that the former opinion was right,‘and that it should be adhered to.
By the Court: For the reasons above stated the former opinion in this case is adhered to.