89 Ind. 225 | Ind. | 1882
The only error complained of by the appellant,, the plaintiff below, is the decision of the circuit court in sustaining a demurrer, for the want of sufficient facts, to his complaint. He alleged in substance in his complaint, that he was, and had been for ten years last past, a bona fide resident and householder of Monroe county; that on the 29th day of November, 1879, the appellee Anna Berge recovered judgment against the appellant and his wife, Martha McCabe, for $50 damages, and costs taxed at $117.65, for slanderous words alleged to-have been spoken by said Martha McCabe of and concerning the said Anna Berge; that the appellant had been made a. defendant in said action for slander, solely because he was the-husband of said Martha McCabe, against whom alone the cause of action existed; that the appellee Anna, on the 8th day of March, 1881, sued out an execution on her said judgment, and delivered the same to her co-appellee, Silas Grimes, then and since the sheriff of said county; that on July 2d, 1881, the appellee Grimes, as such sheriff, levied said execution on the appellant’s real estate, in Monroe county, and had advertised the same for sale on August 13th, 1881, to satisfy said judgment, costs and accruing costs; that on August 3d,, 1881, for the purpose of securing the benefits of the exemption laws of this State, the appellant made out a full, true and complete schedule and inventory of all such property, rights, credits and effects had or held by him on the 8th day of March, 1881, as were required by the exemption laws to be-inventoried and scheduled and subscribed and sworn to by him, and then and there delivered the same to the appellee Grimes as such sheriff, and then and there demanded of and requested such sheriff to set off to him, as exempt from sale, on said execution, all the property, real and personal, described in his schedule, belonging to him, who was then and there a resident householder of this State; that the appellee Grimes,, as such sheriff, caused the said property so inventoried and scheduled to be duly appraised, and the appellant’s interest therein was valued and appraised at a sum less than $600;;
In section 22 of the Bill of Rights, in “the Constitution of this State, it is provided that “ The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.” In section 703, R. S. 1881, in force at the time of the rendition of the judgment, and of the issue of the execution thereon, mentioned in appellant’s complaint, it is provided as follows: “An amount of property not exceeding in value six hundred dollars, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court, for any debt growing out of •or founded upon a contract, express or implied, after the taking effect of this act.” On behalf of the appellant, it is claimed .by his counsel, that the judgment against him in favor of Anna Berge was not founded upon any tort by him committed, but that his liability in damages to Anna Berge grew out of, and was founded upon, his express contract of marriage with his wife, Martha McCabe. Appellant’s counsel says, interrogatively, “ Why is it, under the allegations of the complaint, that appellant was a party to the action of slander at all ? It was not because he was a wrong-doer; not because he was a slanderer of the appellee Anna Berge, but because he was the husband of the wrong-doer, his wife, Martha McCabe. Why make him a party rather than another ? Simply for the reason that under
We have given the appellant’s counsel the benefit of a full statement of his position and of his line of argument, in his own language, although we are clearly of the opinion that his position is untenable and his argument is unsound and illogical. If it were conceded that the appellant might have claimed at any time that the right of action of the appellee Anna Berge against him for the slanderous words spoken of her by his wife, Martha McCabe, grew out of or was founded upon any breach of his marriage contract, it is very clear, we think, that the claim ought to have been asserted in the suit for the slander, and before such right of action was merged in the judgment. For aught that appears to the contrary, the judgment in the slander suit against the appellant, as well as against his wife, Martha, was for damages resulting-directly, not from his marriage contract, or any breach thereof, but from the tortious conduct or language of his wife. The judgment against him for damages in the slander suit concludes the question of the exemption of his property from sale on execution issued on such judgment, and is a complete bar to his. subsequent claim for such exemption. Slaughter v. Detiney, 15 Ind. 49; Sullivan v. Winslow, 22 Ind. 153; Love v. Blair, 72 Ind. 281.
But aside from this we are of opinion that, under the common law, the liability of the husband for the torts or wrong
The appellee’s demurrer to the complaint was correctly sustained.
In conclusion we direct attention to section 5120, R. S. 1881, in force September 19th, 1881, wherein it is provided as follows:
“ Married women, without reference to their ages, shall be liable for torts committed by them; and an action may be prosecuted against them for torts committed, as if unmarried. Husbands shall not be liable for the contracts or the torts of their wives.”
The judgment is affirmed, with costs.