7 Mo. App. 377 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is a suit against the defendants as sureties in an appeal bond the condition of which is as follows: “ Now if said appellants shall prosecute their appeal with due diligence to a decision in the Supreme Court, and shall perform such judgment as shall be given by the Supreme Court, or such as the Supreme Court may direct tile Circuit Court to give, and if the judgment, or any part thereof, be affirmed, will comply with and perform the same so far as it may be
It is contended that the present decision against the defendants assumes that the judgment appealed from was against the married woman, when in fact there was and could be no such judgment; that neither the married woman nor her trustee were liable, under the judgment appealed from, to pay the money either before or after its affirmance,
The general question here involved was considered not long since by this court, in the light of the decisions of this State and also of the recent English decisions. Hooton v. Ransom, 6 Mo. App. 19. The difference between the obligation of the married woman and the mere process which equity, while the coverture continues, affords to the creditor, was there dwelt upon. This distinction is applicable here. The judgment appealed from was merely the conclusion of the law upon given facts, and what that judgment means depends upon the cause of action. It would be a contradiction to say that in the eye of equity a married woman having a separate estate is a feme sole as to given contracts or engagements, and then to say that equity will not recognize any duty or obligation in the married woman to perform those engagements. It is by reason of her obligation to pay her debts contracted by her as a feme sole that equity allows her to be sued. It is as a penalty for her refusal to pay that the compulsion of the law is brought to bear upon her. The particular form which that compulsion takes, whether operating directly upon her, or indirectly upon her through her property, relates merely to the matter of legal procedure. For certain reasons, growing out of the forms of the common law, a judgment directly against a married woman is not, in general, permitted; though there are exceptions to this rule, and the common law, in certain cases, allows both a judgment to be rendered and execution to be issued against a married woman personally. Von Schrader v. Taylor, ante, p. 361. But it in no way contravenes any forms of the common law that equity should recognize the obligation of one who, in this view, is a feme sole to pay her debts ; and this accordingly becomes a basis of action in the equitable proceeding.
Though the appeal bond was not here in double the amount of the money judgment, this fact does not prevent the bond from being essentially a statutory bond, since the bond follows the statute. The judgment was affirmed, and the undertaking of the defendants was that the appellants in the appeal would “ comply with and perform the same, so far as it may be affirmed,” etc. These defendants could, of course, undertake that the married woman should pay the amount of the judgment. There was nothing impossible or contrary to law in such an undertaking, and performance by payment must certainly be considered as having been in view of the parties, unless we are to refuse to give the instrument that scope which its words intend, and make it merely a bond for costs. The most important words of the bond have no meaning -unless they mean that in case of affirmance the defendants will pay the amount of the judgment. The fact that, in default of payment by the appellants in the appeal, execution might issue against the
A judgment upon attachment where there is a personal appearance, or a decree enforcing a mortgage where the mortgagee is made a party defendant and appears, though often called decrees in rem, are not such properly or strictly speaking. Nor is the present decree one which corresponds to the typical decree in rem, the decree in all admiralty proceedings. There is there no personal defendant, the claimant appearing merely as the owner of the property against all the world, the citation being to appear and defend the property the seizure of which gives jurisdiction to the court. In Wood v. Fulton, 2 Har. & G. 75, the proceeding appears to have been against the administrator and heirs, and the court narrowly limited the words of the appeal bond, holding the decree to be in rem, and making no distinction between the judicially recognized liability and the mere award of execution against specific property. The case of Jenkins v. Hay, 28 Md. 547, where neither the terms of the decree nor the terms of the bond are quoted, appears to be, so far as the present point is concerned, put upon the ground that the decree was in rem, the court describing the decree as “ one for the sale of certain mortgaged real estate.” We cannot, in the case at bar, disregard the fact that the decree recognized the liability to pay as distinct from the award of final process against the property, nor can we strike out from the bond words of plain meaning, on which the plaintiff had a right to rely.
The judgment is affirmed.