State Bank of Eldorado v. Maxson

• Citation: 82 N.W. 31,123 Mich. 250
• Court: Michigan Supreme Court
• Decision Date: 06 March 1900
• Parties: STATE BANK OF ELDORADO, KAN., v. MAXSON et al.

82 N.W. 31

123 Mich. 250

STATE BANK OF ELDORADO, KAN., v. MAXSON et al.

Supreme Court of Michigan

March 6, 1900

Error to circuit court, Hillsdale county; Guy M. Chester, Judge.

Action by State Bank of Eldorado, Kan., against L. I. Maxson impleaded with others. Judgment for plaintiff, and defendants appeal. Affirmed.

Grant Fellows and Bert D. Chandler, for appellants.

Frankhauser & Cornell (F. A. Lyon, of counsel), for appellee.

LONG J.

The parties to this cause all reside in the state of Kansas. The action was commenced in this state by writ of attachment. The property attached consisted of the undivided half interest of defendant Isabella Maxson in a certain 80 acres of land in Hillsdale county. The writ was served personally on her. The other defendants were not served with process. The action is upon a certain promissory note reading as follows '$2,000. Eldorado, Kansas, Oct. 7, 1897. Thirty days after date, for value received, we promise to pay to the order of the State Bank of Eldorado, Kansas, two thousand dollars, with interest from maturity until paid at ten per cent. per annum interest payable annually, and, if not paid annually, each installment thereof, when due, shall be added to and become a part of the principal, and thenceforth draw the same rate of interest. Each of the several makers and indorsers hereon hereby expressly agree that the holder of this note may, at the instance of any maker thereof, and without notice to any other maker or indorser make a valid agreement to extend the time of payment of this note, or any part thereof, for any period or periods not exceeding one year from maturity, said makers and indorsers hereby consenting to an approving of the same, and expressly waiving any defense by reason thereof. The indorsers hereon expressly waive protest and notice of protest of this note. A. C. Maxson, Jr. Maude Maxson. A. C. Maxson. L. I. Maxson.'

It was shown on the trial that the defendant Isabella Maxson (L. I Maxson) signed the note with her husband, A. C. Maxson; that it was not given for her debt, but solely for a debt of the husband; that none of the money received was used in and about her separate estate, and was in no wise for her benefit. The lands sought to be reached by these proceedings came to her by descent under the laws of this state. She was a married woman at the time she signed the note in controversy. The married woman's act of the state of Kansas and several Kansas decisions were put in evidence by the defendant. The court below held, and so directed the jury, that the defendant Isabella Maxson was liable on the note, unless they found that the note had been paid. He further instructed them that: 'This note is a Kansas contract, and is governed by the laws of the state of Kansas. Under the laws of the state of Kansas, this defendant is bound by her signature to her husband's note in the same way that she would be if she was unmarried. If you find that she signed this note, she signed it as a joint maker, and is, therefore, equally bound with her husband, and her property is liable for its payment in the same way as that of her husband. You are, therefore, instructed that you cannot consider the question of the marriage relation between these two parties; and I charge you that she is bound to pay this note unless you find the same has been paid.' It is of this part of the charge that counsel for the defendant complains. He contends: (1) That the court had no jurisdiction of the controversy; (2) that a common-law action could not be maintained; (3) that, under a proper construction of the married woman's act of Kansas, the defendant's property could not be held for a debt for which her husband was primarily liable. Our statute provides that: 'Any creditor shall be entitled to proceed by attachment against his debtor * * * in case the debtor * * * is a nonresident in the circuit court of any county where the property of the debtor subject to attachment may be found.' 3 Comp. Laws 1897, � 10,555. In Newland v. Circuit Judge, 85 Mich. 151, 48 N.W. 544, the precise question was before the court, and it was held that, where a nonresident comes into this state, and submits himself to the jurisdiction of the court, the statute points out the mode of procedure to acquire jurisdiction over the defendant. See,...