Baldwin v. Kimmel

16 Abb. Pr. 353, 1 Rob. 109

• Court: The Superior Court of New York City
• Decided: July 15, 1863
• Status: Published

Opinion

By the Court.—Robertson, J.

The defendant is a married woman, and the present action seems to have been brought against her, in order to obtain the benefit of the amendment of section 274 of the Code, passed in April, 1862,—whereby judgment was allowed to be given against a married woman for costs and damages, to be levied out of her separate estate,—and also that of sect. 287,—authorizing the issuing of execution against a married woman, to1 be levied out of her separate estate. These amendments, which extended the provisions passed in 1853, relative to contracts of a wife before marriage (Laws of 1853, 1057, ch. 575), to all her liabilities, left the right of action against, or the liability of, a married woman alone to be tried in the action, and postponed the determination of the mode of satisfying the amount recovered, until the execution. The judgment did not cease thereby to be in rem, although nominally in personam. It was only to be enforced against a particular kind of property.

These amendments would, of course, not do away with the necessity of alleging in the complaint, and showing, the liability of a married woman for an act relating to her separate estate, or trade carried on by her under the act of 1860 (Laws of 1860, 157, ch. 90, § 7; Dickerman a. Abrahams, 21 Barb., 551), or, generally, whatever was necessary to show her liability. A woman may be arrested for a wilful injury to person, character, or property, and therefore judgment may be obtained against her for damages for such misconduct (Code, § 179); but this has been held not to apply to married women (Anonymous, 1 Duer, 613; S. C., 8 How. Pr., 134; Schaus a. Putseher, Ante, 353, note), and no such remedy could be enforced against one.

The amendments of 1862, therefore, leave undetermined several important questions: Whether a married woman, against whom a judgment has been obtained, may be subjected to sxxpplementai’y proceedings as regards her separate property; Whether, on a judgment against a married woman for a tort, her separate estate may be levied on; Whether she can give a confession of judgment (see Wotkyns a. Abrahams, 14 How. Pr., 191; Person a. Warren, 14 Barb., 488); And whether a new action can be commenced on a judgment against her for any cause, so as to enable the plaintiff to make her separate property liable on execution. In other words, whether a married woman is to be considered in all respects as a feme sole in regard to her liability and the judgment in an action against her, except as to the mode of enforcing such judgment.

At common law, a married woman could have no persoixal property, except choses in action not reduced to possession, which could not be levied on: her separate personal estate, in equity, coxxld not be reached on a mere judgment: on such judgment, therefore, against her personally, only her real estate, while her husband lived, or her personal estate acquired or reduced to possession after his death, could have been reached by execution.

A fair interpretation of the two amendments of sections 274 and 287, in 1862, seems to require' that in all cases of a judgment against a married woman, it should be expressly stated therein, that the amount is “ to be levied or collected out of her separate estate, and not otherwise,” as in judgments formerly against executors or administrators; the execution, of course, should follow the judgment in its terms. As a plaintiff, therefore, can hereafter get no more or less by a second judgment upon such a judgment hereafter obtained, than by the latter itself, he probably would be entitled to sue upon it in all cases.

At the time of the recovery of the judgment sued upon in this case (August, 1849), however, it depended upon the form of the judgment, whether only the real estate of the defendant could be levied on, and all remedy against her personal property must be postponed until her husband’s death, or not: it was, in form, a general judgment in personam, to be enforced by all the means by which such a judgment could be enforced, but by no other. The only judgment which can now be rendered is one to be enforced against the separate property of the defendant. In order to warrant that, in this case it should have been alleged and shown either that the original cause of action on which the first judgment was obtained, or that such judgment itself, warranted it: a mere absolute judgment in personam, which could not have been enforced against the defendant’s personal property until her husband’s death, and never could have been enforced against her separate estate before the change in the law, would not warrant such a new judgment. All contracts or acts of married women, which would in any way make them liable, would, - if made after the passage of the amendatory statute of 1862, subject their separate estate, and it only, to the provisions of that statute. In order to obtain the benefit of the change in the law by a judgment to be enforced against the separate property oí the defendant, the plaintiff was bound to establish, at least, that such separate property could have been reached on such original judgment, when not so expressly declared in it; in other words, that the original cause of action was such, as to have entitled the plaintiff to a judgment against the separate estate of the defendant, had the law been the same as now: otherwise, the effect of the amendments of 1862 would be to allow the plaintiff to reach property on the faith of which the original liability was never incurred; which could not then have been applied to its satisfaction, but which the Legislature now, by a species of confiscation, is presumed to have intended so to apply: this would strip married women in this State of all vested rights under deeds of trust in their favor; an intention not to be presumed, even if the act itself were constitutional. As, therefore, the judgment was obtained before the passage of the act of 1862, and the pleadings in the action in which it was recovered show only that it was obtained on a promissory note claimed to be made by the defendant, the plaintiff was bound to establish, that it was, when made, binding upon her separate estate, before he becomes entitled to a judgment to reach it now: which is the only judgment he can get, the language of such amendment being, “ out of her separate estate, and not otherwise,.”

The decision of the referee, giving judgment therefore against the defendant, without proof that her separate estate was liable, or that the liability arose since April, 1862, was erroneous, and ought to be reversed for that reason alone.

But the original judgment was only against E. C. Kimmel and Alexander F. Kimmel: in the complaint therein, it was alleged that E. O. Kimmel made the note sued on : the affidavit of service of the complaint and summons was upon E. Q. Kimmel only: nothing appeared on the record to show that Elizabeth 0. Kimmel was the defendant intended, or that she was a married woman: there is no evidence in this case to identify the present defendant with the E. O. Kimmel mentioned in such original action as defendant, or with the person served with the summons or complaint therein: the defendant denies in her answer in this action upon the judgment, and denied in her testimony, any such service, and, as • well as her husband, testified to facts showing its exceeding improbability. No evidence was offered to contradict such testimony, except a "promise by the defendant to pay such judgment, which does not conflict with it: such promise, if supported by a sufficient consideration, might warrant a new action, but would not make a judgment without jurisdiction regular, or prove that any paper had been served on the defendant: she may have made the note, and thought herself honorably bound to pay the judgment, but the promise was no admission of a legal liability or regularitydn the judgment. In the absence of any conflict of evidence, the defendant’s testimony established'that she was not served; which either made the judgment void for want of jurisdiction, at least as regarded her, or disproved her identity with the person made defendant by service. (Starbuck a. Murray, 5 Wend., 148; Noyes a. Butler, 6 Barb., 613; Dobson a. Pearce, 12 N. Y., 156.) For this reason, also, the judgment was erroneous.

Upon the foregoing principles, the testimony to prove the, consideration of the original note was admissible, in order tp show that the defendant’s separate estate was not liable, and was improperly excluded.

The judgment must be reversed, the order of reference xvacated, unless the parties consent to its standing, and a new trial had, with costs to abide the event.

Babbottk, J., concurred.

White, J.

A judgment was recovered in August, 1849, by Joshua P. Humphreys and Edwin B. Humphreys against E. C. Kimmel and Alexander F. Kimmel, upon a promissory note, made by E. C. Kimmel to the order of, and indorsed by, Alexander F. Kimmel. The judgment was recovered by default, and the judgment-roll and proceedings are in the form usual upon judgments by default in such cases, except that the affidavits of service of the summons and complaint on the defendants is not made by the sheriff, and it does not state that the person making the service knew either of the persons served to be either of the persons mentioned or described in the summons as a defendant therein; nor does it state that a copy of the summons or complaint was left with either of them.

The judgment came by assignment to Baldwin, the above-named plaintiff, who, in 1862, brought the present action upon it against the above-named defendants, Elizabeth 0. Kimmel and Alexander F. Kimmel, alleging, in the complaint, the recovery of the above-mentioned judgment in 1849, that the defendant Elizabeth 0. Kimmel sued in this action is the same person against whom the judgment was recovered in 1849 by the name of E. 0. Kimmel, that said judgment of 1849 remains in full force and effect, and was duly assigned to-the present plaintiff Baldwin, by whom it is now owned; and thereupon judgment is demanded in the complaint against the-defendant for the full amount of the original judgment, with interest.

The defendant Elizabeth 0. Kimmel was. alone served with the summons and complaint in the present action, and alone answered, denying in her answer every allegation of the complaint ; and further denying that she had been served with the summons and complaint in the action of 1849, and also controverting .the allegation that she was the person intended to be-described as defendant by the name of E. 0. Kimmel in that action, and alleging that at the time of the recovery of the judgment in 1849 she was, and is yet, a married woman, the wife of said Alexander F. Kimmel; and further denying any indebtedness to the Humphreys upon which her separate estate could be charged.

The cause was referred, and, upon the trial before the referee, the judgment-roll of the judgment of 1849 was read in evidence, under exceptions taken by the defendant; such exceptions alleging that the judgment was void: first, because it is a judgment in personam against a married woman upon a promissory note made by her during coverture; and, secondly, because the affidavit of service of the summons and complaint is insufficient.

Proof of the assignment of the judgment to the present plaintiff was also made.

The defendant Elizabeth C. Kimmel testified, on her own behalf, that she was the wife of the defendant Alexander F. Kimmel, and was so at the time of the making of the note upon which the judgment of 1849 was obtained; that she was never served with the summons and complaint in the action of 1849, and could not have been served at the time stated in the affidavit of service annexed to the roll,—namely, June 18, 1849,— because, at that time, and for many days previously, and for many weeks afterwards, she was very sick in bed with cholera,, confined to her room from the second week in June until September, 1849, so sick that none but her attendants were permitted to see her, being a part of the time out of her mind;; and the first knowledge that she had of the judgment of 1849 was when the summons and complaint in the present action was served upon her.

Her husband, the defendant Alexander F. Kimmel, was also sworn, and corroborated her testimony.

Edward B. Humphreys was sworn for the plaintiff, and stated “ that he had, at least, a dozen conversations with the defendant since the judgment in question, in which he referred to the judgment, and she said she would pay it when she was able.”

The defendant Mrs. Kimmel being recalled, stated positively that she never had the conversation with Humphreys which he swore to; that he had not been inside her house, and she had not seen him since 1848.

Defendant’s counsel offered to show that the note on which the judgment of 1849 was recovered was given for a debt dne from Alexander F. Kimmel to the Humphreys, and not for any indebtedness of the defendant Elizabeth, nor for her benefit, nor for the benefit or upon the credit of her separate estate. The plaintiff’s counsel objecting to this testimony, it was excluded by the referee, to which decision the defendant’s counsel excepted.

Upon the foregoing testimony, the referee found the existence of the judgment of 1849 unreversed, and in full force and effect, and that the whole amount, with interest, is due and payable; that the plaintiff is entitled to recover the same; that that judgment was obtained upon a promissory note, made by the defendant Elizabeth, and indorsed by her husband, the defendants then being husband and wife; that neither of them made any defence to the action on the note; and that the defence of her then coverture cannot be made available by the defendant Elizabeth in the present action.

The defendant duly excepted to these findings.

The judgment entered upon the findings concluded by adjudging “ that the said judgment be enforced and collected according to law out of the separate estate or property of the said defendant, Elizabeth 0. Kimmel.”

The defendant appeals from the judgment thus rendered against her, and (so far as I can gather from the printed case and points) alleges, as grounds for reversal, in substance:—

1st. That the note upon which the judgment of 1849 was recovered was void by reason of the maker’s then coverture; and that the plea of coverture is as available to the defendant in this action, which is brought upon the judgment recovered upon the note, as it would have been in the original action brought upon the nóte itself, if it had been then pleaded.

2(f. That the present action being brought against a married woman upon a judgment in personam recovered against her, the complaint should allege facts showing affirmatively that the debt for which the note was given was an indebtedness of the defendant, incurred for the benefit or upon the credit of her separate estate; and that the complaint not containing such allegations, it does not state facts sufficient to constitute a cause of action, and the plaintiff must therefore fail.

3d. That the judgment of 1849 was void as to the defendant Elizabeth 0. Kimmel, because the court never had jurisdiction of her,—no summons ever having been served upon her, and she never having appeared in the action.

Upon neither the first or second point above stated should the judgment in this case be reversed, in my opinion.

If the defendant omitted to plead her coverture when she might have done so, and, instead of so pleading, she had suffered a judgment to be taken, against her by default, the record of which presents on its face no error of fact or of law (for nothing of her coverture appears upon the judgment-roll), she cannot interpose that plea in an action brought against her upon the judgment. Her only remedy would be to apply by motion or action to open the original judgment, and let her in to defend the suit.

And, as to the allegations proper in a complaint on an action, upon such a judgment as that recovered in 1849, all that it is necessary for the plaintiff to allege in the complaint is the fact of the present existence of the judgment, unreversed and unsatisfied. It is not necessary to go behind it, and make allegations respecting pre-existing matters which that judgment must be presumed to have disposed of, and respecting which it is, so long as it stands, a complete and conclusive finality.

A question respecting the connection or relation of the original judgment to the defendant’s separate property, no mom arises in such a case than it would in a case in which a married woman should he sued upon a promissory note made by her before marriage, while a feme sole; and it need no more be stated or referred to in the complaint in one case than in the other.

The direction in the judgment in this action, “ that it be collected and enforced out of the defendant’s separate estate,” is no otherwise objectionable than that it fails to adopt with sufficient literal accuracy what is now the authorized form of a judgment against a married woman in every case and for any cause (Laws of 1862, 849, ch. 460),—the object of this statute being, as I suppose, merely to give more full expression or effect to ‘ the principle, that the wife’s debts can be made chargeable only upon her own separate estate, and the husband’s debts only upon his separate property.

But, on the third of the above points, I think that the testimony, as it is given in the case, preponderates irresistibly in favor of the conclusion that the defendant was not served with ■a summons or complaint in the original action. All the proceedings in that action should, therefore, be regarded as to her coram non judice, and the judgment as to her absolutely void.

Upon that ground, therefore, I concur in the conclusion that the judgment in the present action must be reversed, and a new trial ordered, with costs to abide the event; the order of reference to be vacated, unless the parties stipulate that it shall remain.