McMahon v. Perkins

46 A. 405, 22 R.I. 116, 1900 R.I. LEXIS 62

Opinion

Stiness, J.

The plaintiff claims that the defendant’s title, based upon an attachment sale, is void.

(1) First. Because the affidavit on the writ was defective. The action was brought against husband and wife for an antenuptial debt of the wife. The affidavit stated that the plaintiff had a claim against the defendant, instead of defendants. The plaintiff claims that the use of the singular instead of the plural number made the affidavit void, because it did not comply with the statute, Pub. Stat. cap. 206, § 12, and did not aver a claim against both defendants.

The affidavit, in this respect, conforms exactly to the statute, which uses only the word defendant. The statute of construction, Pub. Stat. cap. 24, § 3, provides that the singular number should include the plural, and vice versa. But the same construction which would apply to the statute would, of course, apply to the affidavit made literally according to its terms. It is not like the case of the omission or change of words which the statute requires, as in Greene v. Tripp, 11 R. I. 424; Farrow v. Dutcher, 19 R. I. 715. The present case is more like Stokes v. Potter, 10 R. I. 576, where the affidavit in the words of the statute was sustained, although the allegations were in the alternative. In Stearns v. Hemenway, 162 Mass. 17, the word “debtor” in an affidavit was construed to mean £ £ each debtor. ” So the word £ £ defendant ” in this case may be construed to include the parties defendant. See also Abbott v. Tucker, 4 Allen (Mass.), 72. The plaintiff cites cases to the contrary, but as they depend upon the construction of differing statutes we need not attempt to reconcile them with the construction of our own statute.

Charles E. Gorman, for plaintiff. John W. Hogan, for defendant.

(2) The same reasoning applies to the entry of the judgment in the District Court, where the letter “s” was omitted after defendant. The record of the judgment, however, shows a claim against both defendants, and it is not therefore avoided by reason of an evident clerical error. It was, in fact, a judgment against both defendants. The affidavit being sufficient, the court had jurisdiction to enter the judgment, and its confirmation and issue of execution, after failure of an appeal, were in conformity to Pub. Laws, cap. 832.

(3) The plaintiff also objects to the validity of the judgment because the declaration set out distinct causes of action, one a joint indebtedness and the other a debt contracted by the wife. The joint indebtedness, so-called, is simply a general count that both defendants were indebted to the plaintiff. Then follows a special count, setting out the antenuptial debt. For such a debt husband and wife were properly sued jointly. Dicey on Parties, *297 ; 2 Bishop’s Law of Mar. Women, § 310. Both counts, therefore, set out a joint and not distinct indebtedness.

We find no error in the decision of the case, and the petition for a new trial is denied.