Menefee v. Chesley

• Decision Date: 13 April 1896
• Citation: 66 N.W. 1038,98 Iowa 55
• Parties: C. W. MENEFEE, Appellant, v. C. P. CHESLEY
• Court: Iowa Supreme Court

66 N.W. 1038

98 Iowa 55

C. W. MENEFEE, Appellant, v. C. P. CHESLEY

Supreme Court of Iowa, Des Moines

April 13, 1896

Appeal from Cass District Court.--HON. A. B. THORNELL, Judge.

ACTION at law to recover of defendant the amount of a certain bill of goods sold to his wife. Judgment for defendant. Plaintiff appeals.

Affirmed.

John Hudspeth for appellant.

Willard & Willard for appellee.

OPINION

DEEMER, J.

The amount involved being less than one hundred dollars, the case comes to us on a certificate from the trial judge. We need not set it out in full. The facts as found by the lower court are that in 1893, the plaintiff sold and delivered to Mrs. C. P. Chesley, defendant's wife certain groceries, to the value of eighty-one dollars, on which there yet remains due the sum of sixty-nine dollars. The goods were sold upon the order of, and credit was extended solely to the wife. The goods so sold were used by the wife and her children by a former husband, who lived with her at the time. The defendant was married to the woman who purchased the goods in the year 1892. At the time of the marriage, she had three minor children, who lived with her in property owned by the wife. Immediately upon the marriage, defendant took up his residence with his wife and her children, and continued to live there until January, 1893. At this last-named date, trouble arose between the parties; and, as a result, the defendant, upon invitation of the wife, left, and went to an hotel, where he has since resided. When he quit living with his wife, he notified the merchants of the city where they both resided, not to sell goods to his wife upon his credit. He did not, however, at any time object to the stepchildren living in his family; nor did he say anything to the merchants to whom he gave the notice, that he did not wish to support these children. The wife had no income at the time she purchased these goods, and the husband refused to support or provide for her or her children.

On these facts, the following questions of law are propounded. First. Is the husband, C. P. Chesley, liable for the balance due upon said account, under the circumstances above given? Second. After the husband's departure from the household, under the circumstances above given, did he have a family remaining in the household, within the meaning of section 2214, of Miller's Code of Iowa? Third. Is the indebtedness arising from the sale of said goods to the wife, one which can be said to constitute "family expenses," within the language of said section, as against the defendant, C. P. Chesley? Fourth. There having been kept no account of the particular groceries consumed by the wife, or of those used by the children, can the husband escape liability in this case, by reason of the fact that the children are not his own? Fifth. The plaintiff placed the wife upon the stand, and offered to contradict by her, the husband's testimony with reference to what was said at the time of the quarrel, and also to show by her, the fact that she had no means of support, other than those coming from her husband. Counsel for the husband objected to the witness before she was sworn, and before she came upon the stand, upon the ground that she was the wife of the defendant, C. P. Chesley, and therefore her evidence was incompetent as against him. She is a co-defendant in this suit, but the trial of this case was against the husband, and the case against the wife was not being tried. "Judgment had been entered against C. P. Chesley before a justice of the peace, from which judgment C. P. appealed. No judgment had been entered against the wife so far as I know. The court sustained said objection, to which ruling the plaintiff, at the time, excepted. Question: Was this action of the court prejudicial error?"

It may be well before answering these questions to dispose of two questions of practice. It is insisted that the appeal should be dismissed, because no notice of appeal was served upon the wife. We do not see the necessity for such a notice. It does not appear that Mrs. Chesley was a party to the proceedings; certainly, no judgment was rendered against her, and there is nothing to indicate that she would be affected by this appeal. The appellant's abstract does not set forth the pleadings. It is contended, that this is fatal. As the case comes to us, on certificate, it is not necessary for the appellant to abstract the pleadings. Noble v. Chase, 60 Iowa 261 (14 N.W. 299).

Again it is said, that the...