Walls v. Stewart Bldg. & Roofing Supply, Inc.

• Decision Date: 05 February 1975
• Docket Number: No. 2,CA-CIV,2
• Citation: 531 P.2d 168,23 Ariz.App. 123
• Parties: Marion WALLS, Executrix for the Estate of Elayne D. Chapman, and Candace Olson Perry, Special Administratrix for the Estate of Elayne D. Chapman, Appellants, v. STEWART BUILDING & ROOFING SUPPLY, INC., a corporation, Appellee. Kennedy R. CHAPMAN and Elaine Chapman, husband and wife, dba Kennedy Roofing Company, Ernest Garfield, State Treasurer, Appellants, v. STEWART BUILDING & ROOFING SUPPLY, INC., a corporation, Appellee. 1635.
• Court: Arizona Court of Appeals

Page 168

531 P.2d 168

23 Ariz.App. 123

Marion WALLS, Executrix for the Estate of Elayne D. Chapman, and Candace Olson Perry, Special Administratrix for the Estate of Elayne D. Chapman, Appellants, v. STEWART BUILDING & ROOFING SUPPLY, INC., a corporation, Appellee.

Kennedy R. CHAPMAN and Elaine Chapman, husband and wife, dba Kennedy Roofing Company, Ernest Garfield, State Treasurer, Appellants, v. STEWART BUILDING & ROOFING SUPPLY, INC., a corporation, Appellee.

No. 2 CA-CIV 1635.

Court of Appeals of Arizona, Division 2.

Feb. 5, 1975.

Rehearing Denied March 4, 1975.

Review Denied April 8, 1975.

Mary Anne Peters, Tucson, for appellants

Davis & Eppstein by Ronald D. Siegel, Tucson, for appellee.

OPINION

KRUCKER, Judge.

This appeal is the result of judgment entered in two separate superior court actions. The first action, No. 133878, was for collection of the values of material furnished to a roofing contracting business which was conducted by the husband and wife during coverture. This action resulted in a default judgment entered June 7, 1972, against them jointly and severally in the amount of $3,608.58, plus costs. Subsequent to the judgment, the wife died. The second action, No. 140286, was filed against Marion Walls as Executrix of the Estate of Elayne D. Chapman, and Candace Olson Perry, Special Administratrix of the Estate, to collect the unpaid balance of the judgment in the prior case against Mrs. Chapman's separate estate.

The issues raised by this appeal question whether the judgment in the first case was void as to the wife's separate liability for failure of the complaint to state a cause of action against her individually so as to bind her separate property, and, if the judgment was not binding personally, would the liability of the wife's estate be limited to one-half of the debt to be satisfied only out of community property.

In the second action both sides moved for summary judgment, and, after the filing of memorandums and oral argument, the trial court entered judgment in favor of the appellees against the estate of Elayne D. Chapman.

Appellants assert that the default judgment was taken against the Chapmans as a marital community and a cause of action was not alleged against Elayne Chapman personally. Therefore, they conclude that based upon the pre-1973 charges in the community property statutes, the separate property of a wife cannot be held liable for community debts, citing Union Bank v. Pfeffer, 18 Ariz.App. 386, 502 P.2d 535 (1973).

The first question to be resolved is whether the complaint upon which the default judgment was predicated stated a claim for relief against the deceased in her individual and separate capacity. It stated:

'COMES NOW the plaintiff and for its claim states:

1. That it is an Arizona corporation doing business in Pima County, Arizona; that defendants KENNEDY R. CHAPMAN and ELAINE CHAPMAN, husband and wife, doing business as KENNEDY ROOFING COMPANY, are doing business in Pima County, Arizona; that defendant ERNEST GARFIELD is the Treasurer of the State of Arizona and is the depository as to a cash contractors bond posted by the other defendants pursuant to ARS Section 32--1152.

2. That, during 1972, defendants KENNEDY R. CHAPMAN and ELAINE CHAPMAN, doing business as KENNEDY ROOFING COMPANY, requested from plaintiff, and plaintiff furnished to said defendants, certain materials for use in said defendants business; that said defendants have failed, neglected and refused to pay for said materials although plaintiff has demanded payment; that the sum of $3,608.58 is presently due plaintiff from them.'

The complaint was filed against 'Kennedy R. Chapman and Elaine Chapman, husband and wife, dba Kennedy Roofing Company.' The prayer for relief was for judgment against the Chapmans 'jointly and severally'.

A judgment by default cannot be based upon a complaint which does not state a cause of action. Ness v. Greater Arizona, 21 Ariz.App. 231, 517 P.2d 1278 (1974); Sturges v. Sturges, 46 Ariz. 331, 50 P.2d 886 (1935). It is a well-recognized rule that after the rendering of a default judgment the complaint will be most liberally construed as stating a cause of action warranting the granting of the relief prayed for. Aid v. Bowerman, 132 Wash. 319, 232 P. 297 (1925). Appellee cites the Aid case as a factual example supporting the decision of the trial court and for the further proposition that the prayer for relief can be considered in judging the adequacy of the complaint.

Factually, Aid v. Bowerman, supra, is inapposite. In that case the court emphasized the fact that the complaint alleged that Both defendants promised to pay the loan:

'The unqualified allegation of the loan to, and promise to pay the same by, the defendants, followed by the separate allegation of the security having been given by Mr. Bowerman in behalf of the community, suggests the thought that the complaint proceeds upon the...