Laird v. Thomas

• Decision Date: 01 January 1858
• Citation: 22 Tex. 276
• Parties: H. C. LAIRD v. WILLIAM THOMAS.
• Court: Texas Supreme Court

22 Tex. 276

H. C. LAIRD

v.WILLIAM THOMAS.

Supreme Court of Texas.

1858.

To subject the separate property of the wife, in an action against the husband and wife, upon a promissory note signed by them both, it is not sufficient to aver, in the petition, that the consideration of the note was goods and merchandise purchased of plaintiff by the wife, for her own use and benefit, and the use and benefit of her family; and a judgment simply by default, upon such a petition, against the separate property of the wife, is erroneous.

A married woman, sued in connection with her husband, may waive errors, and make compromises, in relation to the proceedings in such suit.

Where an acknowledgment of service, and waiver of process, appears to have been signed by the husband and wife, it is sufficient, on its face, to authorize proceedings against them; and the court will not presume it to be the unauthorized act of the husband.

Although a judgment by default, has been given against the wife, upon a defective petition, yet, if she accepted service, and waived citation, and it appear from the record, that the judgment was entered by agreement of parties, this court will not reverse it.

A recital in the entry of the judgment, that “it is agreed between the parties, that execution shall be stayed six months,” and a provision that the execution shall not be levied upon the separate property of the wife, if there be sufficient community property, or separate property of the husband, to satisfy the same, makes it reasonably certain that the judgment was entered upon an understanding between the parties.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

Suit by defendant in error, against plaintiff in error, and her husband, L. E. Laird, upon the following promissory note:

+--------------------------------------+
                ¦“$406.53.¦Gonzales, January 1st, 1857.¦
                +--------------------------------------+
                

One day after date, we, or either of us, promise to pay William Thomas, or order, four hundred and six and 53-100 dollars, for value received, with interest at the rate of ten per cent. per annum.

L. E. LAIRD,

H. C. LAIRD.”

This note was alleged in the petition to have been given in consideration of goods and merchandise purchased of petitioner by the said H. C. Laird (plaintiff in error), the wife of the said L. E. Laird, for her own use and benefit, and the use and benefit of her family. The prayer of the petition was for judgment against the defendants, for the amount of the note, interest, and costs; and if there should not be sufficient community property belonging to defendants, nor sufficient separate property of the said L. E. Laird to satisfy the judgment, then, that the separate property of the said H. C. Laird, his wife, be adjudged, etc. On the petition were the following indorsements:

+----------------------------------------------------+
                ¦“Filed 11th March, 1857.¦ISAAC E. NICHOLSON, Clerk.”¦
                +------------------------+---------------------------¦
                ¦                        ¦“Gonzales, March 12, 1857. ¦
                +----------------------------------------------------+
                

I hereby acknowledge service on me of the within petition, and waive further service, and the issuance of process against me in this case.

L. E. LAIRD,

H. C. LAIRD.”

On the 10th of April, 1857, no answer having been filed by defendants, there was a judgment by default against them, for the full amount of the said note, interest and costs, in the usual form; after which the entry concluded as follows: “And should the defendants not have sufficient community or separate property belonging to the defendant, L. E. Laird, to satisfy the judgment, then the residue shall be levied of the separate property of the defendant, H. C. Laird; and it is agreed between the parties, that execution shall be stayed six months from this date.”

On the 27th of January, 1858, the defendant, H. C. Laird, sued out this writ of error.

T. M. Harwood, for plaintiff in error. The wife has no power to make a contract binding even upon her separate property, unless in the manner pointed out by law. Hollis and Wife v. Francois and Border, 5 Tex. 195. The fact that the wife's name appears to a note, or other contract, jointly with her husband, does not make it binding upon her, or her separate estate, unless it is acknowledged by her before some competent officer, separate and apart from her husband, to be her voluntary act and deed, and that she wished not to retract it, etc.

And it is submitted, that the same reasoning is applicable to the pretended effort to waive service of citation. If it were otherwise, she would be effecting indirectly that which she cannot do directly.

But in this case, it is evident this defendant had not her day in court. The pretended waiver of citation, and acceptance of service, upon the back of the petition, speaks for itself. We think it evident, the wife had no hand in it. It was done by the husband, T. E. Laird, and without her knowledge. This pretended waiver of citation, upon the back of the petition, is a signal instance of the wisdom of the law, which requires the certificate of an officer of the law, that she had signed the paper, etc. In this case, she had no opportunity of defending her rights, even if she could have been charged with the debt; and hence her interests, and her rights, should not be prejudiced by the default; the judgment by default, then, cannot be binding upon her, inasmuch as she was never before the court.

But, aside from this view of the case, if it was intended to bring this suit under the statute (Hart. Dig. arts. 2423 and 2424), the petition is manifestly insufficient. The consideration of the note is alleged to be “goods and merchandise purchased at the petitioner's store, in Gonzales, by said H. C. Laird, the wife of said T. E. Laird, for her own use and benefit, and the use and benefit of her family.” This is insufficient, as decided by this court in Brown v. Ector, 19 Tex. 346. The wife's estate is not always liable for necessaries for the use of the family. See case last cited.

There is no allegation in the petition that the husband is insolvent, nor that there is no community property. Hence, he cannot subject the separate estate of the wife to the debt, by a...