Gabriel v. Mullen

• Citation: 30 Mo.App. 464
• Parties: JENNIE R. GABRIEL, Appellant, v. P. Y. MULLEN, Respondent.
• Decision Date: 23 April 1888
• Court: Court of Appeals of Kansas

30 Mo.App. 464

JENNIE R. GABRIEL, Appellant, v. P. Y. MULLEN, Respondent.

Court of Appeals of Missouri, Kansas City.

April 23, 1888

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Reversed and remanded.

Ordered to be certified to Supreme Court.

Statement of case by the court.

Section 3296, Revised Statutes, 1879: " Any personal property including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife: provided, that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care, or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, incumber, or otherwise dispose of the same for his own use and benefit; but such property shall be subject to execution for the payment of the debts of the wife contracted before marriage, and for any debt or liability of her husband, created for necessaries for the wife or family." (Laws 1875, p. 61, amended).

ROBINSON & CROW, for the appellant.

I. There was no judgment against Jennie R. Gabriel, and no execution issued against her, and, therefore, no levy could be made on her property under the execution against her husband, John F. Gabriel, held by defendant Mullen. The property of plaintiff could only be taken from her by due process of law, and her property is not subject to an execution issued upon a judgment rendered against her husband in a proceeding to which she was not a party. The State to use v. Armstrong, 25 Mo.App. 532; Gage v. Gates, 62 Mo. 412; Lincoln v. Rowe, 64 Mo. 138. And in such a case it is immaterial that the debt was for necessaries furnished the family. The State to use v. Armstrong, 25 Mo.App. 532.

II. If Jennie R. Gabriel had been a party to the suit, the judgment against her would have been a legal nullity, as she was a married woman, and hence an execution would not have reached her property. Gage v. Gates, 62 Mo. 412; Lincoln v. Rowe, 64 Mo. 139. Therefore, instructions two and three asked by plaintiff and refused by the court should have been given.

III. And if Jennie R. Gabriel's property had been liable for the debt for which the note was given it could only be reached by an appropriate proceeding in equity for that purpose. Gage v. Gates, 62 Mo. 417.

IV. The court should have given instruction number one asked by plaintiff and refused by the court. When the wife's estate is held liable under a statute for necessaries, the liability only extends to such as are regarded necessaries for the family, and not to anything which goes to the individual or exclusive use of the husband. Kelley's Contracts of Married Women, 177; Hyley v. Collins, 9 Ga. 224; Pipkin v. Jones, 52 Ala. 162; McGee v. White, 23 Tex. 180; Suigfort v. Gardanne, 9 La. An. 4. And it has been held that the liability of the wife's property for necessaries does not extend to medicines and medical care given the wife. Kelley's Contracts of Married Women, 178; May v. Smith, 48 Ala. 483; Yates v. Lervey, 65 Me. 221; Thomas v. Passage, 54 Ind. 114.

V. The general verdict should be set aside, when inconsistent with the special findings. Laws of Mo. 1885, p. 214; 15 N.W. 597. Therefore, the motion of plaintiff for judgment on the special findings should have been sustained by the court.

No brief for the respondent.

ELLISON J.

Plaintiff is a married woman and brought this action of replevin for the possession of a roan mare, her separate property under section 3296, Revised Statutes. Defendant justified holding the mare by answer alleging that he was constable and as such officer had placed in his hands an execution against John Gabriel, husband of plaintiff; that said execution was issued on a judgment rendered by a justice of the peace in favor of August Rhodes, a physician, and against said John Gabriel, upon a note given by Gabriel for necessaries furnished the family of plaintiff; that under said execution, defendant seized and levied upon said horse and was proceeding to sell the same, when it was taken from him under the writ in this suit.

At the trial it was established that the mare was plaintiff's separate property under section 3296, Revised Statutes. It was likewise established that the note upon which judgment was rendered was executed by plaintiff's husband in settlement of a bill for medical services rendered John Gabriel exclusively or personally, as also for plaintiff and their children. In the suit on the note, plaintiff was not made a party.

The trial court, in effect, held the mare liable to the execution, and the verdict was, therefore, for the defendant, and plaintiff appeals.

I. The first question presented is, ought the plaintiff to have been made a party to the suit on the note? The question should be answered in the affirmative. The property mentioned in section 3296, is by that section made the separate property of the wife, just as fully as property is vouchsafed to any other person.

It is hers as absolutely as the husband's property is his. It is made subject to a certain charge or liability, it is true, but it is only that. It is the first principle of enlightened jurisprudence that property cannot be taken from its owner without a hearing--due process of law.

In the case of Houx v. Shaw, 18 Mo.App. 45, we touched upon, but did not decide this question. It was there said, that, " it was not consonant with law or honesty, to suppose it (her property) could be taken from her in a proceeding in which she has no voice or control, and no opportunity to show the subject-matter of the action was not for necessaries, nor to avail herself of the right of appeal. Here would be an opportunity quickly embraced by a worthless husband, to collude with the creditors of his dissipation, and suffer a judgment in their favor, under pretext of necessaries for his wife and family. Liquor and gaming debts would easily metamorphose into family necessaries." The question has since been directly decided by the St. Louis Court of Appeals, in the case of State to use v. Armstrong, 25 Mo.App. 532. The court said, in that case, that her property could " not be taken from her without due process of law; and due process of law has not been had in a case where she has not been served with process, and had an opportunity to appear and be heard, prior to the rendition of a judgment awarding execution against such property."

But it is said the wife may have her " day in court" after her property is taken; that she may replevy it, or enjoin its sale. I see no force in such suggestion. Her property might be of a character which could be taken and sold without her knowledge. But aside from this, it would be queer law, which would permit a judgment to be rendered charging one's property with a liability, and yet permitting such an one to contest the matter when the property is seized under the judgment. The same...