Fulton v. Ryan

• Citation: 82 N.W. 105,60 Neb. 9
• Decision Date: 21 March 1900
• Docket Number: 9,108
• Parties: SARAH FULTON v. IRA L. RYAN ET AL
• Court: Nebraska Supreme Court

82 N.W. 105

60 Neb. 9

SARAH FULTON v. IRA L. RYAN ET AL

No. 9,108

Supreme Court of Nebraska

March 21, 1900

ERROR to the district court for Gage county. Tried below before STULL, J. Affirmed.

AFFIRMED.

Bush & Bush, A. Hardy and T. H. Fulton, for plaintiff in error:

The plaintiff can recover only on the cause of action set forth in his petition. It is not the province of a reply to introduce a new cause of action. Warren v. Powers, 5 Conn. 373; Durbin v. Fisk, 16 Ohio St. 533; School District v. Caldwell, 16 Neb. 68; Reinskoph v. Rogge, 37 Ind. 207; Bradley v. Johnson 45 N. J. Law, 487.

Counsel for the plaintiff in error argued, upon the foregoing authorities, that the petition in the court below was in the ordinary form upon a promissory note; that the answer, as against the allegations in the petition, stated a good and legal defense. But the reply contained new facts not contemplated by the petition; and, upon the trial of said action in the district court, the contest was almost entirely upon the facts set forth in said reply. The plaintiff sought to fix the liability of the defendant under the allegation of the reply, that the note in suit was given by the defendant for necessaries furnished defendant, her husband and family. This was a complete departure from the case set forth in the petition.

The law is settled in this state that, unless judgment has been obtained against the husband in such cases and the execution returned unsatisfied, no recovery could be had against the wife.

Plaintiff's evidence entirely fails to refute the allegations of the answer and the evidence of the defendant, showing that the defendant was a married woman, and that the note in suit was not given upon the faith and credit of her separate property and business; and there is a complete failure of consideration.

Upon the question of the misconduct of the court counsel for plaintiff in error cited: People v. Knapp, 3 N. W. [Mich.], 927; Thompson, Trials, sec. 2555 and cases cited in note; O'Connor v. Guthrie, 11 Ia. 80.

Griggs Rinaker & Bibb, contra, filed no brief.

OPINION

NORVAL, C. J.

This action was brought against Sarah Fulton upon a promissory note. The petition was in the usual form for recovery upon such an obligation. The defendant for answer alleged that at the time the note was given she was a married woman; that she received no consideration therefor, and none inured to her separate estate; that in making the same she did not contract with reference to her separate property, nor did she intend to charge the same with the payment thereof; and that said note was not made by her upon the faith or credit of her separate estate, trade or business. Defendant further alleged that at the time the note was given plaintiff held a judgment against her husband in the county court of Gage county obtained on the indebtedness represented by said note, which said judgment was some months afterwards by said plaintiffs satisfied and discharged; that at the time said note was given her husband was sick and absent from home, and during such absence, plaintiffs, by threats to make her trouble and to commence proceedings to take away her property, induced her to execute said note.

In reply it was alleged, substantially, that the judgment mentioned was for necessaries furnished defendant's husband for the use of the family, and that the consideration for said note was the canceling of said judgment, and that said note was made with special reference to the estate of said defendant. There is no allegation in the reply to the effect that, prior to the commencement of this action, an execution was issued on said judgment against the property of the husband, and that the same was returned unsatisfied. Plaintiffs had a verdict and judgment in the court below, from which the defendant comes to this court on proceeding in error. The petition in error contains numerous assignments of error, but, as all those not noticed in the brief are deemed waived, we will confine our investigation to those assignments of which complaint is made in the brief.

It is first claimed that the allegations in the reply constituted a departure in pleading, in that while the petition declared alone on the promissory note, the reply alleged that the same was given for necessaries, and further, that it was given with especial reference to her separate estate. We do not think any departure in pleading occurred. Coverture is a defense, and having been pleaded in answer to the cause of action set forth in the petition, it was proper to aver in the reply any fact that would avoid such defense, as that the consideration for the note was necessaries furnished the family, and that an execution had issued against the property of the husband and had been returned unsatisfied, or that the promissory note was made with special reference to and as a charge upon the separate property of the defendant; and it appears to us that the pleadings followed in logical sequence, and that no departure occurred. That portion of the reply which attempted to avoid the defense of coverture on the ground that the original indebtedness represented by the note was for necessaries, is defective, for the reason that it does not set up the fact that execution against the husband on the indebtedness had been issued and returned unsatisfied for want of property on which to levy. George v. Edney, 36 Neb. 604, 54 N.W. 986; Small v. Sandall, 48 Neb. 318, 67 N.W. 156. But the other allegation, that the said note was given with reference to the separate property of the defendant, was sufficient to constitute an issue in the case, and was, in our opinion, properly pleaded in the reply to the defense of coverture set up in the answer.

On the trial the following instruction was requested by the defendant, and refused by the court, to which she excepts: "The court instructs the jury that the plaintiff can not maintain this action against the defendant upon the theory that their original account was contracted for necessaries furnished the family of defendant, but charged to her husband J. B. Fulton for that, it is not shown that any execution was ever issued against defendant's husband for such indebtedness and returned unsatisfied; that it is necessary as a condition precedent to maintaining this action, to show that a judgment had been maintained against the husband on account and execution duly issued thereon to the proper officer, and that said execution has been duly returned unsatisfied." We see no error in the refusal of the court to give this instruction. As the pleadings stood, the real issue in the case was, not that the original indebtedness was for necessaries furnished the family, but whether the note was given with reference to the separate property of the wife, which issue the tendered instruction ignored, hence there was no error in refusing the same. It is not reversible error to refuse an instruction tendered which withdraws from the jury a material issue made by the pleadings and evidence.

On the...