Clinkscales v. Hall
| Decision Date | 21 November 1881 |
| Docket Number | CASE 1121. |
| Citation | 15 S.C. 602 |
| Parties | CLINKSCALES v. HALL. |
| Court | South Carolina Supreme Court |
1. A married woman may be sued at law upon her personal contract entered into as surety for her husband, if it was based upon sufficient consideration, and was not procured by duress.
2. The provisions of Sections 298 and 310 of the code of procedure requiring an execution against a married woman to direct a levy and collection out of her separate property and not otherwise, are merely directory, and not necessary to the validity of the execution.
3. A judgment, not absolutely void, cannot be assailed by the judgment debtor under supplementary proceedings.
Before PRESSLEY, J., Anderson, September, 1879.
The appeal in this case was from an order in supplementary proceedings commenced by Reuben Clinkscales, as administrator of Jeremiah Moore, under judgment obtained by the intestate in October, 1876. The opinion states the case.
Messrs. Murray & Murray , for appellants.
Mr. J. C. C. Featherston , contra.
This was an action on a note under seal, as follows:
One day after date we, or either of us, promise to pay Jeremiah Moore or bearer the sum of three hundred and seventy-nine dollars and eighty-seven cents, value received, with interest at twelve and a half per cent. yearly. Witness our hands and seals this January 31st, 1874.
J. G. HALL. [L. S.]
M. JANE HALL. [L. S.]
The signers of the note were both sued and judgment by default rendered against them. Judgment and execution were issued in the usual form. The sheriff returned the execution unsatisfied, and supplementary proceedings were taken against the defendant, M. Jane Hall, who was ordered to appear at Anderson Court-house on September 18th, 1879, to be examined and make discovery on oath concerning her property, & c. She employed counsel, and it then appeared, for the first time, that she was the wife of her co-defendant, J. G. Hall, neither the complaint nor judgment and execution having made any reference to that fact. The judgment was in the usual form against parties sui juris , and the execution contained the mandate " to satisfy the said judgment out of the personal property of the said M. Jane Hall within your county; or, if sufficient personal property cannot be found, then out of the real property in your county belonging to such judgment debtor, & c., *** in whose hands soever the same may be," & c.
The attorney of Mrs. Hall advised her not to answer the interrogatories until it could be determined whether, as a married woman, she was liable. She was ruled to show cause why she should not be attached as for a contempt in refusing to answer touching her property. She answered the rule, disclaiming disrespect and assigning reasons for not answering interrogatories. The return was heard by Judge Pressley, who made the rule absolute, and from that order Mrs. Hall appeals to this court upon the following exceptions:
" 1. Because the defendant, M. Jane Hall, being a married woman, and having signed the note upon which the judgment in this case was obtained as surety for her husband, the whole proceedings, so far as they relate to her, are void ab initio .
2. Because his Honor erred in holding that the judgment and execution in this case were valid, whereas he should have held that M. Jane Hall, being a married woman, the pleadings must show the fact, and such other facts as would charge her, under the statutes, as a married woman, and render her liable upon the contract sued on, and that the pleadings in this case having failed so to do, that the whole pleadings were absolutely null and void.
3. Because the judgment and execution being without the authority of law, all subsequent proceedings under the same are absolutely null and void, and the defendant, M. Jane Hall, cannot be required by virtue of such proceedings to answer concerning her property under proceedings supplementary to execution.
4. Because, if the pleadings were valid and the debt genuine and binding, his Honor erred in holding that the judgment and execution are valid, whereas they are contrary to the statutes of this state and null and void, and no proceeding can be had under them.
5. Because his Honor erred in holding that a married woman can become a surety for her husband under the statute of this state, which provides that she may ‘ make a contract as if she were a feme sole .'
6. Because the decision of his Honor is incorrect in that it enlarges the powers of married women beyond those allowed by the constitution of this state, and is repugnant to the provisions of said constitution relating to the property of married women."
The first, fifth and sixth exceptions insist that the proceedings were void " " " " ab initio ," for the reason that Mrs. Hall, being a married woman, had not capacity to bind herself by a personal contract upon which she could be sued in an ordinary action at law. In the case of Pelzer, Rodgers & Co. v. Campbell & Co., 15 S.C. 581, this court held that under our late constitution and laws, a married woman has capacity to bind herself by a personal contract just as if she were a feme sole . It is not necessary to repeat here the reasons for that judgment, to which reference is made. The consequence is that this plaintiff or his intestate had the right to sue the defendant at law, notwithstanding she was a married woman when she signed the note. It does not matter whether she gave it for property purchased by herself or as surety for her husband, only provided it was given on sufficient consideration and was not extorted under circumstances that would avoid any note upon the ground of duress. Wright v. Remington , 12 Vroom 41.
The second, third and fourth exceptions make the point that, even if the debt was legal and recoverable, the judgment and execution, not having the form required by law, are...
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