Akron Sav. Bank v. Charlson, 10452

• Decision Date: 25 April 1968
• Docket Number: No. 10452,10452
• Citation: 158 N.W.2d 523,83 S.D. 251
• Parties: AKRON SAVINGS BANK, Plaintiff and Appellant, v. Elmer O. CHARLSON, Administrator of the Estate of Hilda Anderson, Deceased, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 523

158 N.W.2d 523

83 S.D. 251

AKRON SAVINGS BANK, Plaintiff and Appellant, v. Elmer O. CHARLSON, Administrator of the Estate of Hilda

Anderson, Deceased, Defendant and Respondent.

No. 10452.

Supreme Court of South Dakota.

April 25, 1968.

E. P. Murray, Le Mars, Iowa, John F. Murphy, Elk Point, for plaintiff and appellant.

J. Henry Eik, Sioux City, Iowa, Martin M. Miller, Beresford, for defendant and respondent.

BIEGELMEIER, Judge.

Plaintiff bank brought this action in circuit court against the administrator of the estate of Hilda Anderson, deceased, to recover on four notes signed only by her husband August A. Anderson. It appears from plaintiff's Second Amended and Substituted Complaint that loans were made to August A. Anderson for the purpose of providing family necessaries and the funds from these loans were deposited in a joint checking account in the names of August A. Anderson and his wife; that withdrawals were made from the checking account in payment of these family necessaries from time to time. It is further alleged the notes given by the husband were executed in Iowa, were payable in Iowa and the Andersons lived and maintained their home in Iowa during that time and up to the time of their deaths; that the wife knew the loans were being made and the funds deposited in the joint checking account and later used for payment of the family necessaries and knew her husband had executed the notes; that by Section 597.14 of the 1962 Code of Iowa, as construed by the Supreme Court of Iowa, the husband and wife are jointly liable for the payment of family necessaries and under said laws Hilda Anderson and her estate are liable for the payment of the notes. The trial court sustained a motion to dismiss plaintiff's complaint on the ground of plaintiff's failure to state a claim upon which relief could be granted in that the Iowa statute did not include money advanced or loaned to the husband and thereafter used to pay family expenses. The appeal is from this ruling.

Demurrers having been abolished, a motion to dismiss now provides an expeditious remedy to test the legal sufficiency of a pleading and deals with questions of law arising thereon. SDC 1960 Supp. 33.1002 and Hauck v. Bull, 79 S.D. 242, 110 N.W.2d 506. For the purpose of a motion to dismiss, like that of a demurrer, the court must treat as true all facts as properly pleaded in the complaint. Hirning v. Forsberg, 49 S.D. 46, 206 N.W. 471. It does not admit conclusions of the pleader either of fact or law. Section 597.14 of the 1962 Code of Iowa, which is quoted in plaintiff's complaint, reads:

'Family expenses. The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.'

In substance it has been in Iowa statutes since 1851, except earlier statutes did not qualify the family expense to be reasonable and necessary as does present § 597.14. See Code, § 2214 quoted in Davis v. Ritchey, 55 Iowa 719, 8 N.W. 669. Plaintiff states the liability of a husband and wife under the statute is statutory and not contractual. If that were so plaintiff is not entitled to recover as the action here is not for the reasonable and necessary expenses of the family but on certain specified notes signed only by the husband.

Plaintiff contends the notes, being made in Iowa by an Iowa resident and to be performed in Iowa, are to be construed according to the laws of Iowa as to the construction, validity and enforcement as indicated in First National Bank of Sibley, Iowa v. Doeden, 21 S.D. 400, 113 N.W. 81. Defendant makes no argument as to this rule and accepts the application of it here. Applying Iowa law plaintiff claims a wife may be held liable for the money borrowed by her husband when it was borrowed for the purpose of using it to pay family expenses and was so used. The Supreme Court of Iowa was presented with the precise issue in Davis v. Ritchey, supra, where it wrote:

'The question, then, is whether borrowed money can be regarded as a family expense, if borrowed for and used in obtaining things which, if obtained on credit, would be an expenditure for the family. We think not. The statute was enacted for the benefit of the husband or wife, and person from whom the things constituting the family expenses were obtained, to the end that credit could be obtained and extended for something essential, necessary, or convenient, or so deemed by the husband or wife, to be used in or by the family. Money cannot be so used. Therefore it cannot be a family expense, even if borrowed for the family. It may be, and in the present case was, used to procure what, if obtained on credit, would have been a family expense. But the provisions and medicines procured with the money were paid for. Such amount, therefore, cannot be a charge against any one, so that if the plaintiff recovers it is for money borrowed by the defendant's husband, which it is sought to be charged on her separate property, and which she at no time, or in any manner, obligated herself to pay.'

Plaintiff admits the Ritchey decision has not been expressly overruled, but argues other opinions have in some respects modified it. These cases are distinguishable. The court in Sherman v. King, 51 Iowa 182, 1 N.W. 441, denied recovery from a wife on a note given by a husband in payment of money which the plaintiff had paid in settlement of an indebtedness owing for family expenses for the reason...