Mccurdy v. Baughman

• Decision Date: 24 March 1885
• Citation: 43 Ohio St. 78,1 N.E. 93
• Parties: McCURDY v. BAUGHMAN.
• Court: Ohio Supreme Court

43 Ohio St. 78

1 N.E. 93

McCURDY

v.BAUGHMAN.

Supreme Court of Ohio.

Filed March 24, 1885.

Error to district court, Franklin county.

January 20, 1871, John Baughman and Mary Baughman executed and delivered to H. H. McCurdy a promissory note, payable to his order, for $99.50, due one day after date, with interest at 8 per cent. McCurdy having indorsed the note to Buren Taylor, the latter, on March 18, 1871, obtained, by default, a judgment thereon against the makers and indorser for the amount of the note, with interest, before a justice of the peace of Franklin county. At the time the note was executed, and also when suit was brought, and when judgment was rendered, Mary Baughman was the wife of John Baughman, and she continued to be his wife until March 4, 1873, when he died insolvent. September 17, 1878, the judgment having become dormant, as well by the death of John Baughman as from the fact that no execution had issued for more than five years, the judgment was revived in due form, before the justice, against McCurdy and Mary Baughman, the latter failing to appear in obedience to the order of revivor, which was served upon her. The coverture of Mary Baughman did not appear in the record in any form.

November 15, 1878, Taylor filed a transcript of such judgment in the court of common pleas of Franklin county, and the clerk of that court having issued an execution thereon, the sheriff of Franklin county levied the same on the real estate of Mary Baughman, (properly described,) and advertised the same for sale on April 5, 1879. Mary Baughman thereupon commenced an action in that court against McCurdy and Taylor, to enjoin the enforcement of such levy, execution, and judgment. In her petition she set forth the above facts, which are admitted, and further alleged that the debt for which the note was given was the individual debt of John Baughman; that she signed it at his request and as his surety; that she was not then indebted to McCurdy, nor was she the owner of any property, nor was she engaged as partner or otherwise in any mercantile business; ‘that she was ignorant of what she was signing at the time, and that she derived no consideration whatever from said H. H. McCurdy, or any other person or persons whatsoever, upon said note;’ that the real estate levied upon came to her since the death of her husband, as the heir of her father; that the judgment, revivor, execution, and levy are all void; and she prays for a perpetual injunction.

The court having overruled a demurrer to the petition, the defendants, by answer, denied that the note was given for an individual debt of John Baughman; denied that Mary Baughman signed the note as surety; and denied the allegation that she received no consideration for it. The case was submitted to the court on the petition and answer, without evidence, and the court decreed in accordance with the prayer of the petition. The district court having affirmed the judgment, a petition in error was filed in this court to reverse the judgment below.[Ohio St. 80]Marriott & Hughes, for plaintiff in error.

Outhwaite & Linn, for defendant in error.

OKEY, J.

1. The allegation of the plaintiff below, in her [Ohio St. 81]petition, that when she signed the note ‘she was ignorant of what she was signing,’ is to be construed in connection with the admission that she knew it was a promissory note, and with the allegations that the note was given for an individual debt of John Baughman, and that she signed it as his surety, at his request; and the further fact must be considered that the petition contains no allegation of fraud or coercion, nor is it even claimed that she was misled or mistaken as to the nature of the instrument, nor that she would have refused to sign it on the fullest explanation. Pleadings, under the present system, must receive a fair and reasonable construction, (Crooks v. Finney, 39 Ohio St. 57;Robinson v. Greenville, 42 Ohio St. 625;) and, so construed, the phrase quoted means no more than that she was not fully informed as to the exact nature and extent of her obligation on such promissory note. Clearly, such an indefinite statement in a petition, in view of the facts stated, affords no ground of relief. At best, the matter should have been set up when suit was brought on the note.

2. In Ohio, justices of the peace have jurisdiction only as conferred by statute, and in order that the decision of such magistrate should operate as an estoppel, it must appear from his record that the matter adjudicated was within the jurisdiction so conferred, and also it must appear that he had acquired jurisdiction over the person. This fairly appearing, however, the judgment of a justice of the peace is as impregnable against collateral attack as the judgment of any otehr court in the state. State v. Daily, 14 Ohio, 91. Hence the case would stand in no respect different if the judgment had been rendered by the court of common pleas.

3. The answer, in effect, admits the allegations of the petition, except so far as denied. No proof of the matters denied having been offered, the allegation of Mary Baughman, in her petition, that the note was given for the individual debt of John Baughman, and that she signed the note as his surety and at his request, may be regarded, for [Ohio St. 82]the purpose of this opinion, as out of the case. And this brings us to the real questions in the case, which may be stated as follows: ‘A married woman, upon sufficient consideration, united with her husband in executing to another person a promissory note, and she and her husband being sued thereon, failed to appear in obedience to the summons, and judgment was rendered against both for the amount of the note, although coverture would have been a complete defense in her behalf, and she was fully authorized to make such defense. Civil Code 1853, § 30; Rev. St. § 4997. The disability did not appear in the record, and no step was taken to set aside or reverse the judgment. Is such judgment void or merely voidable; and, if merely voidable, will a court of equity, without allegation and proof of some ground of relief additional to coverture,-as, for instance, fraud or coercion,-enjoin the enforcement of such judgment?

The first question, namely, whether such judgment is void, is very distinctly answered in the negative by Collen v. Ellison, 13 Ohio St. 446. That was a case in which it was shown by the record that a member of the bar appeared in court, and, producing the warrant of attorney of Rebecca Callen and others, confessed judgment against them for an amount specified therein, upon which judgment their land was sold. Rebecca Callen and other defendants were, at the time the warrant was executed, and also when the judgment was confessed, married women, though the fact did not appear in the record. No steps were taken to set aside or reverse the judgment. Subsequently to the sale, the person so under disability sought to obtain partition of the land, proceeding upon the theory that the judgment and sale were as to them merely nullities; but this court, in an able and instructive opinion by GHOLSON, J., unanimously held that the judgment and sale were valid, and operated as a complete bar to partition, notwithstanding such coverture; and that decision has never been doubted or questioned in this court, but has been repeatedly[Ohio St. 83]cited with approbation. Wehrle v. Wehrle, 39 Ohio St. 365.

Undoubtedly a number of decisions have been found to be in opposition to Callen v. Ellison. Graham v. Long, 65 Pa. St. 383; Swayne v. Lyon, 67 Pa. St. 439; Vandyke v. Wells, 103 Pa. St. 49; cf. Hartman v. Ogborn, 54 Pa. St. 120; Morse v. Toppan, 3 Gray, 411;Griffith v. Clarke, 18 Md. 457;Higgins v. Peltzer, 49 Mo. 152;Weil v. Simmons, 66 Mo. 617;Wernecke v. Wood, 58 Mo. 352; cf. Walker v. Deaver, 79 Mo. 664;Cary v. Dixon, 51 Miss. 593;Norton, v. Meader, 4 Sawy. 603. And see Brittin v. Wilder, 6 Hill, 242;Watkins v. Abrahams, 24 N. Y. 72;Hix v. Gosling, 1 Lea, 560;Swing v. Woodruff, 41 N. J. Law, 469; 7 Rob. Pr. 157; Schouler, Husb. & W. § 289, note 5; Bigelow, Estop. (3d Ed.) 61, 62; 1 Daniell, Ch. Pr. (5th Amer. Ed.) 186, note by Chancellor COOPER.

With respect to some of these cases a brief explanation is proper. Morse v. Toppan, which is an opinion of 10 lines by Chief Justice SHAW, has not been followed in Massachusetts, and, although not overruled, it is much shaken by Reid v. Holmes, 127 Mass. 326, 329, where GRAY, C. J., remarked: ‘In Morse v. Toppan, 3 Gray, 411, the judgment which was held void was against a married woman alone, in an action brought against her upon a contract made by her during coverture, while she was incapable by law of contracting or being sued. No argument was submitted for the plaintiff; and in the only case cited by the court ( Faithorne v. Blaquire, 6 Maule & S. 73) the judgment was set aside on motion.’ And see Freison v. Bates College, 128 Mass. 464.Cary v. Dixon, though not overruled, is limited in Taggert v. Muse, 60 Miss. 870, which is an authority that the judgment against Mrs. Baughman is not void.

Norton v. Meader was affirmed, (11 Wall. 442,) but in the supreme court the general question of the validity of a judgment against a married woman was not considered. Hix v. Gosling, though an able opinion, is not authority that such a judgment is void; but if it could be so considered, Crawford v. Crawford, 1 Tenn. Leg. Rep. 37, is a direct [Ohio St. 84]authority against it. Brittin v. Wilder and Watkins v. Abrahams are cases in which the attack was made directly, and it is shown in later New York cases, hereinafter cited, that these cases are not to be regarded as sustaining the view that...