Christian v. Soderberg

82 N.W. 819, 124 Mich. 54, 1900 Mich. LEXIS 468

Opinion

Montgomery, C. J.

Defendants are husband and wife. On the 19th day of April, 1890, they made and executed a promissory note in the sum of $1,000, payable to complainant, and executed a mortgage collateral thereto. A bill was duly filed to foreclose this-mortgage, a subpoena served, together with a memorandum stating that a personal decree was sought against both defendants. Default was made by defendants, and a decree declaring both defendants liable for, and determining, the amount due, was duly entered. A sale of the mortgaged premises was had, and a deficiency reported. Application was thereupon made for an execution for deficiency. The petition was dismissed as against Anna Soderberg on the ground that she was a married woman when the note was given, and, as it was not given with reference to her separate estate, she was not personally liable upon it. Complainant appeals.

The defense attempted should have been interposed before decree. Haldane v. Sweet, 58 Mich. 431 (25 N. W. 383); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440); Ward v. Obenauer, 119 Mich. 17 (77 N. W. 305). It was competent for the court to determine the liability of the defendant by the decree. Simons v. McDonnell, 120 Mich. 621 (79 N. W. 916). A judgment or decree is binding upon a married woman. See Wilson v. Coolidge, 42 Mich. 112 (3 N. W. 285); Evans v. Calman, 92 Mich. 427 (52 N. W. 787, 31 Am. St. Rep. 606).

The order will be reversed, and an order entered for execution, with costs of this court.

The other Justices concurred.