Bush v. Arnett
| Citation | 271 Ky. 803 |
| Parties | Bush et al. v. Arnett |
| Decision Date | 01 February 1938 |
| Court | United States State Supreme Court (Kentucky) |
1. Husband and Wife. — A married woman's defense that she signed note as surety for husband and was not liable thereon under statute must be pleaded in action on note, and could not be set up to bar collection of judgment obtained against her (Ky. Stats., sec. 2127).
2. Pleading. — An original petition was not demurrable on ground that blanks therein were not filled in where blanks were contained in amended petition which was filed simply to correct certain allegations of original petition, and original petition, which was not withdrawn, contained all the essential figures and dates left out of amended petition.
3. Appeal and Error. — The erroneous refusal to permit defendant to amend her answer after demurrer thereto was sustained was not prejudicial, where defendant planted her case squarely on the proposition that the answer as drawn stated a defense, and an opportunity to amend would have gained her nothing (Civil Code of Practice, secs. 134, 338, 756).
4. Appeal and Error. — The Court of Appeals can reverse only where an error affects the substantial rights of a party (Civil Code of Practice, secs. 134, 338, 756).
Appeal from Wolfe Circuit Court.
LEEBERN ALLEN for appellants.
A.H. STAMPER and A.C. RUSSELL for appellee.
Affirming.
On January 17, 1923, appellants, W.B. Bush and Sarah Bush, his wife, executed a note in the sum of $500 in favor of appellee, Lina Arnett. The note was not paid, and, on September 5, 1929, appellee filed suit in the Wolfe circuit court to recover a judgment for the amount of the note less one credit of $60. Summons was issued and a due return made thereon by the sheriff showing service on both of the defendants. No defense was made, and judgment for the amount due was rendered on December 6, 1929. Execution was issued on the judgment, and a return of "no property found" was made. Thereafter, on January 18, 1936, the suit now before us was filed on the judgment, asking for a general order of attachment against the property of the appellants, and real estate belonging to the appellant Sarah Bush was reached by the levy.
Appellant W.B. Bush made no defense, but Mrs. Bush filed an answer in which she undertook to plead, amongst other things, that she had signed the note as surety for her husband and was not liable thereon under the provisions of section 2127 of the Kentucky Statutes. Proof was taken, and on final submission the court rendered a judgment in favor of appellee, sustaining the attachment and directing a sale of the property involved. In the course of its judgment the court directed that appellee's motion to strike each paragraph of the answer should be sustained, and also sustained a demurrer to each paragraph. The only points argued here are that the defense of appellant Sarah L. Bush under section 2127 of the Kentucky Statutes should have been upheld and that the court should not have overruled a demurrer to the petition and sustained a demurrer to, and a motion to strike from, the answer.
It has been thoroughly settled since the passage of the Weissinger Act in 1894 (Ky. Stats., sec. 2127) that a married woman must plead the defense of suretyship in the original proceeding and cannot set it up to bar the collection of a judgment obtained against her. This was determined in the case of Turner v. Gill, 105 Ky. 414, 49 S.W. 311, 20 Ky. Law Rep. 1253, decided in 1899, and the rule has been consistently applied since that time. Wren v. Ficklin, 109 Ky. 472, 59 S.W. 746, 22 Ky. Law Rep. 1035; Howard v. Gibson, 60 S.W. 491, 22 Ky. Law Rep. 1294; Bethel v. Durall, 61 S.W. 699, 22 Ky. Law Rep. 1801; Shanklin v. Moody, 66 S.W. 502, 23 Ky. Law Rep. 2063; Herring v. Johnston, 72 S.W. 793, 24 Ky. Law Rep. 1940; Belcher v. Polly, 106 S.W. 818, 32 Ky. Law Rep. 623; Bogie v. Nelson, 151 Ky. 443, 152 S.W. 250; Miracle v. Purcifull, 178 Ky. 212, 198 S.W. 753; Cleveland v. Couch, 231 Ky. 332, 21 S.W. (2d) 468.
It is argued that a demurrer should have been sustained to the original petition because certain blanks therein were not filled in. However, the blanks complained of were...
To continue reading
Request your trial