16 Ind. 200 | Ind. | 1861
This was a suit originally commenced by Sophronia Tibbetts against the appellant, on a note and mortgage executed by Martindale to tbe said Sophronia, in
Two points are made for the. reversal of the judgment. First, the overruling of the last demurrer; and second, the judgment, as to costs, to be collected without appraisement.
The appellant contends that as the debt was the separate property of the wife, she could sue therefor only in her own name. The statute provides, that “when a married woman is a party, the husband must be joined with her; except, first, when the action concerns her separate property, she may sue alone.” This statute we regard as rendering it optional to bring the suit in the name of the wife alone, or that of the husband and wife, where the action concerns her separate property. There was no error in overruling the demurrer. No steps appear to have been taken in the Court below to properly raise the second point, but as it is a question of frequent occurrence in practice, we proceed to consider it.
The appellant claims that the costs go to the officers and not to the plaintiff, and that they are dependent upon ordinary contracts and to be governed by the general law. This is not strictly correct. The plaintiff is supposed to pay costs to the officers as he makes them, (however seldom they are thus paid in fact,) and if he recovers judgment against the defendant, he also recovers the costs he is supposed to have thus paid.
We think the statute providing for the rendition of judgments to be collected without appraisement (2 E. S. 1852, § 381, p. 123,) does not contemplate a different judgment as to costs from that in respect to the debt. The judgment for
The judgment is affirmed, yrith 5 per cent, damages and costs.