Gruen v. Bamberger

• Decision Date: 06 December 1881
• Parties: JACOB GRUEN, Respondent, v. GEORGE BAMBERGER, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 261

JACOB GRUEN, Respondent,

v.GEORGE BAMBERGER, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 6, 1881.

1. A recovery cannot be had against a husband alone for the ante-nuptial debts of the wife.

2. Where a husband and wife are joined in an action for her ante-nuptial debts, it is error to dismiss as to her and render judgment against him.

3. The failure to specially plead the non-joinder of the wife and the submission of the cause upon an agreed statement of facts, do not operate as a waiver of the defect.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

H. G. SACHLEBEN, for the appellant: A judgment against the husband alone for the ante-nuptial debts of the wife is erroneous.--Minor's Inst. 360, 388; Schouler's Dom. Rel. 72; Gage v. Reed, 15 Johns. 403; Gray v. Thatcher, 4 Ala. 136; Platner v. Patchin, 19 Wis. 333; Angel v. Felton, 8 Johns. 149; Drue v. Thorn, Aleyn, 72; Richardson v. Hall, 5 Eng. Com. L. 14; Mitchison v. Hewson, 7 Term Rep. 351.

E. L. GOTTSCHALK, for the respondent: The defendant, having pleaded to the merits, cannot raise the objection of non-joinder of parties.-- Daily v. Houston, 58 Mo. 361; Boal v. Morgner, 46 Mo. 48; Rickey v. Tenbroeck, 63 Mo. 563; Graham v. Ringo, 67 Mo. 324; Lass v. Eisleben, 50 Mo. 120; Kirr v. Bell, 44 Mo. 125; Dowran v. Intilligencer, 70 Mo. 175.

THOMPSON, J., delivered the opinion of the court.

An action was commenced against the defendant and wife before a justice of the peace, on an ante-nuptial contract of the wife. On motion of the plaintiff, the justice dismissed the suit as to the wife, and the husband thereupon moved the justice to dismiss the suit for want of jurisdiction, which motion the justice overruled, and rendered judgment against him, from which judgment he appealed to the circuit court.

In the circuit court the parties submitted the cause on the following agreed statement of facts: “The plaintiff, Jacob M. Gruen, sold and delivered to Frederica Dorgut, a widow, the goods charged in the account filed, at the time and price therein charged, and there was paid by said Dorgut on said account, the amount for which credit is given, and balance has not been paid, but demanded by plaintiff; that thereafter, to wit, on the fifth day of December, 1879, said Frederica Dorgut married the defendant George Bamberger, upon whom demand was made for the bill, but payment refused; that George Bamberger and wife are still living together.” Upon this statement of facts the court rendered judgment for the plaintiff against the husband alone for the amount of the debt.

Was this error? Our law relating to the property rights and liabilities of married women seems to be somewhat in a transition state, and we must approach very carefully every question of this kind; and it is our duty to adhere to ancient and well-established precedents, unless we can see very clearly that they have been abrogated by statutory innovations, or by more recent judicial decisions. And we feel bound to do this even where the reason of the ancient rule may not be apparent to us, or where it may seem plainly against reason.

Our supreme court has many times said that a judgment against a married woman is a nullity. Wernecke v. Wood, 57 Mo. 352; Caldwell v. Stephens, 57 Mo. 589; Lincoln v. Rowe, 64 Mo. 138; Weil v. Simmons, 66 Mo. 617; and other cases. But this, like every other general expression in a judicial opinion, must be taken and understood with reference to the particular facts in judgment. There are, as pointed out by HAYDEN, J., in Von Schrader v. Taylor (7 Mo. App. 361), cases in which a judgment, and even an execution against a married woman, is permissible. Our supreme court has never held that a judgment cannot be rendered against a husband and wife jointly in a suit to enforce a contract of the wife dum sola; on the contrary, that court, on a consideration of the question, itself rendered such a judgment in Benjamin v. Bartlett (3 Mo. 86).

The rule of the common law undoubtedly was and is, that a husband is liable for the ante-nuptial debts of his wife; that in order to enforce this liability, the action must be brought against the husband and wife jointly; that the judgment necessarily runs against them jointly (for there would be no sense in requiring a party to be joined as a defendant against whom no judgment could be rendered); that the enforcement of the judgment, as against the wife, is suspended during the coverture; but that if she survive the husband, and the judgment remains unsatisfied, execution may issue against her, just as though she had been sole when the judgment was rendered.

Another rule of the common law is that, unless there has been a separate and distinct undertaking of the husband to pay the debt, a judgment for it against him alone will be arrested on motion, or reversed on error. Drue v. Thorn, Aleyn, 72; Mitchison v. Hewson, 7 Term Rep. 350; Angel v. Felton, 8 Johns. 149; Gage v. Reed, 15 Johns. 403; Gray v. Thatcher, 4 Ala. 136; Platner v. Patchin, 19 Wis. 333; Richardson v. Hall, 1 Brod. & B. 50. The reason of the rule appears to be, that the husband is not liable absolutely, and at all events, for the ante-nuptial debts of his wife, but that his liability is qualified. It subsists against him during the coverture, but if he die before the wife, it survives against her, and not against his personal representatives. Whereas, if it were the rule that he could be sued alone for such a debt, it would follow that, in the event of his death before that of the wife the judgment would survive as a demand against his personal estate, and would not survive against the wife; which would cast upon him and his next of kin, a more onerous liability than the law intends.

We know of no reason for doubting that this rule was the law of Missouri when this contract was made. It follows that the judgment of the circuit court must be reversed. The suit, however, will not be dismissed, for the wife may possibly be made a party by further proceedings in the circuit court. Rev. Stats., sect. 3708. The case will, therefore, be remanded.

Judge BAKEWELL concurs; Judge LEWIS is absent.

THOMPSON, J., delivered the opinion of the court on a motion for a rehearing.

We are asked to grant a rehearing in this cause, and it is suggested that we have overlooked, in the opinion which we rendered, a point which the plaintiff's counsel supposed to be the most material point in the case, namely, that the question whether the wife was not a necessary party defendant was waived by the defendant in submitting the cause on the merits and failing to call the attention of the court to the fact. We did not overlook this point at all, but considered it fully, and it is entirely disposed of by what is said in the opinion. It is a mistake to suppose that the liability of a husband to pay the ante-nuptial debts of his wife is in the nature of a liability...