Cruger v. McCracken

• Decision Date: 11 March 1895
• Citation: 30 S.W. 537
• Parties: CRUGER v. McCRACKEN.
• Court: Texas Supreme Court

30 S.W. 537

CRUGER v. McCRACKEN.

Supreme Court of Texas.

March 11, 1895.

Error to court of civil appeals, Fourth supreme judicial district.

Action by R. H. McCracken against J. P. Cruger. On appeal, judgment was entered against Amy N. Cruger on the supersedeas bond. A motion to vacate the same was dismissed (30 S. W. 373), and she brings error. Reversed.

Solon Stewart, for plaintiff in error. Upson & Bergström, for defendant in error McCracken. S. G. Newton, for defendants in error C. L. & J. V. Dignowity.

GAINES, C. J.

The defendant in error recovered a judgment in the district court of Bexar county against J. P. Cruger, the husband of the plaintiff in error. From this judgment J. P. Cruger sued out a writ of error to the court of civil appeals, and gave a supersedeas bond, with his wife, Amy N. Cruger, J. V. Dignowity, A. D. Bell, and C. L. Dignowity, as sureties. The judgment was affirmed in the court of civil appeals (26 S. W. 282), and thereupon judgment was rendered in favor of defendant in error against the plaintiff in error in that court, and the sureties upon his error bond, for the amount of the judgment of the court below, and interest and costs. J. P. Cruger made an application for a writ of error to this court, but his application was refused. After the refusal of his application, but at the same term of the court at which the judgment was affirmed Amy N. Cruger, the plaintiff in error in this court, filed a motion in the court of civil appeals to set aside the judgment, as to her, upon the ground that at the time she signed the supersedeas bond she was a married woman, and the wife of J. P. Cruger. The motion was supported by her own affidavit and that of her husband, as well as by affidavits of other persons, who were not parties to the suit. The court of civil appeals entered judgment dismissing her motion (30 S. W. 373), and from that judgment this writ of error is prosecuted.

The bond in question would have been void at common law. It is also void under our statutes. Hollis v. Francois, 5 Tex. 195. In this state a married woman can only bind herself by contract when entered into for necessaries for herself and children, or for the benefit of her separate estate. See 1 Sayles' Civ. St. art. 2854, and cases there cited. Article 2854 reads as follows: "The wife may contract debts for necessaries furnished herself and children and for all expenses which may have been incurred by the wife for the benefit of her separate property, and for such debts suit may be brought in the manner prescribed in article 1205." Article 1205 provides that the husband and wife shall be jointly sued for all debts contracted by the wife for necessaries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property." 1 Sayles' Civ. St. art. 1205, and cases cited. Except as prescribed in the articles quoted, the wife, under our laws, remains subject to the disabilities affixed upon her by the common law. Kavanaugh v. Brush, 1 Tex. 481. Under similar statutes in other states, where the right of a married woman to hold property has been established by law, and when she has been authorized to contract for certain specific purposes, her contract, for a purpose other than such as is expressly authorized, has been uniformly held void. Berry v. Bland, 7 Smedes & M. 77; Glyde v. Keister, 1 Grant, Cas. 465, 32 Pa. St. 85; Woolsey v. Brown, 11 Hun, 52, 74 N. Y. 82. In New York it has been held that a married woman was bound as surety upon an appeal bond in which it was expressly provided that the obligation should be a charge upon her separate estate. Under the statutes of that state, a married woman, it seems, may bind herself by contract, by expressly declaring in the instrument the intention to charge her separate property. Manufacturing Co. v. Thompson, 58 N. Y. 80. Our statutes authorize the rendition of a judgment against the obligors in an appeal bond, in case the judgment is affirmed by the appellate court. Laws 1892, p. 31, § 37. The judgment is entered without citation or notice to the parties to be affected. The obligors acting under the authority of law voluntarily submit to the jurisdiction of the court, and subject themselves to have a judgment rendered against them summarily for the debt and costs, provided the condition of the bond be broken, or the judgment be not reversed. The bond is, in one respect, at least, analogous to a warrant of attorney to confess judgment. It is the act of the party executing it which confers jurisdiction upon the court to render judgment against him. A married woman's warrant of attorney to confess a judgment has been held absolutely void. Keiper v. Helfricker, 42 Pa. St. 325.

The execution of the bond by Mrs. Cruger being a nullity, it follows that the court of civil appeals did not acquire, by such execution, jurisdiction to render judgment against her. But the fact that at the time of its execution she was a married woman not appearing by the record, and the court having entered judgment without the fact of her disability having been brought to their knowledge, the question is, has she a remedy? If she is entitled to any relief, what is her remedy? A judgment of a court may be erroneous either in fact or in law. When a court has made an erroneous ruling upon the record, or upon the facts which are disclosed in the proceedings before it, it is error in law. Such error may be corrected by the court which committed it, during the term at which it was committed, upon motion for a new trial, or a motion for a rehearing, as the case may be; otherwise, when the error is not committed in a court of last resort, the remedy is by appeal or writ of error. Error in fact occurs when, by reason of some fact which is unknown to the court, it renders a judgment which is void or voidable. This may take place by reason of the coverture, infancy, or death of one of the parties, when the fact is not shown by the record at the time the judgment is rendered. When an infant has appeared by an attorney, or a married woman appears as a feme sole, or one of the parties dies, and judgment is rendered in the suit, the judgment is erroneous, and, at common law, is subject to be set aside by a writ of error coram nobis. Brown v. Torrey, 22 Tex. 55; Weaver v. Shaw, 5 Tex. 286; Castledine v. Mundy, 4 Barn. & Adol. 90; Sloo v. Bank, 1 Scam. 428; Beaubien v. Hamilton, 3 Scam. 213; Milam Co. v. Robertson, 47 Tex. 222; Railroad Co. v. Wynne, 42 Miss. 315; Day v. Hamburgh, 1 Browne (Pa.) 75; Kemp v. Cook, 18 Md. 130. This writ is returnable to the court in which the judgment was entered, and puts in issue the fact which avoids the judgment, and is determinable in that court. It...