Womack v. First Nat. Bank of Anson

• Decision Date: 29 March 1935
• Docket Number: No. 1423.,1423.
• Citation: 81 S.W.2d 99
• Parties: WOMACK et ux. v. FIRST NAT. BANK OF ANSON.
• Court: Texas Court of Appeals

81 S.W.2d 99

WOMACK et ux. v. FIRST NAT. BANK OF ANSON.

No. 1423.

Court of Civil Appeals of Texas. Eastland.

March 29, 1935.

Appeal from Jones County Court; Otis Miller, Judge.

Action by the First National Bank of Anson against J. W. Womack and Ella Womack. From a judgment in favor of plaintiff, defendants appeal.

Judgment affirmed as to defendant J. W. Womack, and reversed and rendered as to defendant Ella Womack.

William E. Hawkins, of Abilene, for appellants.

Thomas & Thomas and J. E. Robinson, all of Anson, for appellee.

LESLIE, Justice.

The First National Bank of Anson sued J. W. Womack and Ella Womack on their promissory note in favor of the bank for the sum of $282.65, with interest, attorney's fees, etc. The defendants answered by general demurrer, special exceptions, and plea of coverture. The trial was before the court without a jury, and resulted in a judgment in favor of the bank, running against the defendants "personally and jointly and severally," and "against the community property of the defendants J. W. Womack and Ella Womack, and also against the property belonging to the separate estate of the defendant Ella Womack." The defendants appeal.

We have considered the appellee's motion to strike appellants' brief, and overrule same.

Since the plaintiff's petition did not disclose that the defendants were husband and wife at the time the note in suit was executed, the general demurrer was properly overruled. Gamel v. City National Bank (Tex. Com. App.) 258 S. W. 1043.

There are no orders in the transcript showing that the trial court overruled the special exceptions, and the assignments purporting to be based thereon are overruled.

The remaining propositions resisting liability on the part of Ella Womack, the wife of J. W. Womack, are controlling. The plaintiff's petition was in regular form, and sought recovery on the note against the said Womacks jointly and severally. In their answer, the defendants pleaded coverture at the time of the execution of the instrument in suit. They went further in their answer, and alleged affirmatively that the debt was not incurred by Mrs. Womack for the benefit of her separate estate, or for any other purpose for which the statutes rendered her personally liable. The plaintiff merely entered a general denial to these allegations of the defendants' answer.

Hence it will be observed that the plaintiff bank nowhere, in either its original amended petition, supplemental petition, or other pleading, affirmatively alleged that the debt in suit was as to Mrs. Ella Womack contracted by her for the benefit of her separate property, or for any other purpose or reason that would authorize a judgment against a married woman under our statutes. The fact of coverture as pleaded is established by uncontroverted testimony. It therefore follows that, in the absence of allegations in the plaintiff's pleadings showing an obligation that grows out of the special classes of contracts which she is by law authorized to make, there would be no liability shown on her part. Gamel v. City Nat. Bank, supra; Graham v. Carmany (Tex. Civ. App.) 2 S.W. (2d) 467; Perkins v. Compton (Tex. Civ. App.) 61 S.W.(2d) 575; Hoffman v. Korp & Murray Tool Co. (Tex. Civ. App.) 251 S. W. 823; Kelly v. Rozelle (Tex. Civ. App.) 294 S. W. 699; Snyder-Bell Groc. Co. v. Hamilton (Tex. Civ. App.) 276 S. W. 752; Schenck v. Foster Bldg. & Realty Co. (Tex. Civ. App.) 215 S. W. 877; Beshears v. Talbot (Tex. Civ. App.) 241 S. W. 635; Shannon v. Childers (Tex. Civ. App.) 202 S. W. 1030; Poe v. Hall (Tex. Civ. App.) 241 S. W. 708; Speer's Law of Marital Rights in Texas (3d Ed.) p. 653, §§ 530 and 531; 23 Tex. Jur. p. 342, § 294 et seq. In said Law of Marital Rights, p. 654, it is said: "A petition which fails to show the grounds of her liability will not support a judgment, either by default or upon proof, the fact of her coverture...