Wright v. Preston

55 Ala. 570 | Ala. | 1876

STONE, J. —

The liability of the statutory separate estate of a married woman, “for articles of comfort and support of the household,” etc., may “be enforced by action at law against the husband alone, or against the husband and wife jointly.” — Rev. Code, § 2376.

“If suit is brought against the husband alone, upon any such contract, and execution is returned ‘not satisfied,’ the separate estate of the wife may be sold, by order of the court, for the satisfaction of the judgment, ten days’ notice in writing being given to the wife, of the intended motion.” Rev. Code, § 2377.

Appellees had recovered a judgment at law against Patton & Anderson, and, under process of garnishment, against John Y. Wright, husband of appellant, they had also recovered a judgment against him, as the debtor of Patton & Anderson. Execution on this latter judgment had been returned “no property found;” and the present proceeding was instituted, by written notice and motion, to obtain an order to sell Mrs. Wright’s statutory separate estate, under section 2377, supra.

It has been uniformly held in this State, that garnishment is a legal proceeding, and is a suit. — -Witherspoon v. Barber, 3 Stew. 365; Presnall v. Mabry, 3 Por. 105; Thomas v. Hopper, 5 Ala. 442; Travis v. Tart, 8 Ala. 574; Moore v. Stainton, 22 Ala. 832; Jachson v. Shipman, 28 Ala. 492; Price v. Masterson, 35 Ala. 492.

Judgment against the garnishee, and return of execution “not satisfied,” is a compliance with all the substantial requirements of the Code, above referred to; and the other facts necessary to charge tbe statutory separate estate being shown, we hold that this is a compliance with the statute, and authorizes a proceeding to reach and condemn the wife’s estate. It establishes the fundamental fact, to-wit, that suit against the husband is unproductive.

2. Nor is it necessary that, in the primary suit against' the husband, it shall be disclosed that the claim sought to be recovered is for “articles of comfort and support of the household, suitable to the degree and condition of the family, for which the husband would be responsible at common law nor that the claim, sued and recovered against him, shall consist entirely of such articles. It is the unmistakable import of the statute, that when the husband is first sued alone, the property of the wife shall not be molested, until the fruitlessness of the first suit is shown by a proper return of the sheriff on the execution. The proceeding being purely statutory, this is one of the jurisdictional pre-requisites. When, however, this fact is shown by judgment, and execution properly returned, all that is of substance in the statute is' complied with, notwithstanding the husband may be adjudged to pay a larger sum than the wife’s estate is liable for. — Sharp v. Burns, 35 Ala. 664; McMillan v. Burt, Ib. 665.

We do not think there is anything in the position taken, that it is not shown that the judgment against John Y. Wright, the husband, is founded on the same cause of action as that on which the wife’s separate estate was condemned. True, the record of the recovery against the husband does not prove this; but, in the trial of the motion against Mrs. Wright, we think this is abundantly shown; and, also, that it was based on a contract for articles, such as the statute declares the statutory separate estate is liable for.

3. The plea of the statute of limitations of three years, pleaded in short, does not contain the necessary averment, that the claim sued on was an open account. Wanting such averment, if it had been demurred to, the demurrer would have been sustained.- — 2 Brick. Dig. 226, §§ 128, 129. But, inasmuch as the sufficiency of the plea was not passed upon by the court, we must consider it well pleaded, containing the averments that the claim sued on was an open account, and that it did not accrue within three years before the commencement of the suit. Thus construed, the court did not err in holding that the present claim was not within its influence. The record contains no evidence that the claim was what the law calls an open account; for it. does not appear that any term of the contract was left unsettled by the parties making it. — See Mims v. Sturdevant, 18 Ala. 358. The record being silent on this question, we cannot suppose the exist-once of facts not shown, and make them tbe basis of a reversal. — See 1 Brick. Dig. 781, §§ 115, 119, 120.

4. There is another reason, however, why the statute did not perfect a bar in this case. Mrs. Wright removed from this State before the three years elapsed, and the record does not inform us that she ever returned. This stopped the running of the statute; and the fact that she, all the time, owned'the property in this State, the subject of the present proceeding, does not change the result. The statute is explicit, and contains no exceptions. Absences from the State are to be excluded, in the computation of time necessary to create a bar by limitation. — Rev. Code, § 2908.

5. It is contended that, inasmuch as the identical property sought to be condemned in this proceeding had been previously ordered to be sold, in payment of other liabilities of a similar nature, made a charge upon it, that this placed the property beyond the reach of process, and this proceeding must fail on that account. We cannot agree to this. Like successive levies of executions on the same property, we hold that successive charges of this kind may be fastened on the same property, until, if necessary, the whole value is exhausted.

There is no error in the record, and the judgment is affirmed. This is not, as against Mrs. Wright, a judgment for money; and hence, no damages will be awarded on affirmance.