Waggoner v. Turner

28 N.W. 568, 69 Iowa 127

• Court: Supreme Court of Iowa
• Decided: June 15, 1886
• Status: Published

Opinion

Seevers, J.

i. husband and wife : family expense: note wIfe’sSHauno/iimitations. It is, in substance, stated in the petition that the plaintiff from October, 1865, until May, 1877, furnished medicine and medical services for the family of the defendants, and that the same were a proper 1 I an(^ necessai7 family expense; that the same, in accordance with the usual custom, was charged to the appellant’s husband; that in 1878 the latter gave the. plaintiff his note for the balance due, payable in one jmar. This action was commenced in 1884, and the only ground upon which it is insisted that the court erred in overruling the demurrer is that the action against the appellant is barred by the statute of limitations.

The petition is substantially the same as the petition in Lawrence v. Sinnamon, 24 Iowa, 80, and, following that case, and the subsequent case of Davidson v. Biggs, 61 Iowa, 309, we must hold that the demurrer was correctly overruled. Counsel for appellant, as we understand, concedes that the cited cases are decisive of this, unless a different rule should obtain because the statute has been changed since Lawrence v. Sinnamon was decided. His contention is that under section 2507 of the Revision a wife could not be sued separately, but could be sued jointly with her husband. Under section 2562 of the Code she may be sued without joining her husband in the action. It is therefore insisted, as the liability of the appellant is on the account, and not on the note, that a cause of action accrued against her at least as early as the last item charged in the account. If this position be correct, it will be conceded that the action is barred. But, conceding that the liability of the appellant is on the account, the conclusion reached does not necessarily follow. Under the Code a separate action may be brought against the wife, but the creditor is not compelled to do so. lie may, if he sees proper, join her and her husband in the same action, and in such case, for the reasons stated in the cases above cited, the action against the wife is not barred as long as it subsists against the husband. This, it seems to us, must be so, for under the statute the joint action can be maintained against both in the same right, and necessarily the statute bars the action against both at the same time. The Code, in allowing a separate action to be brought against the wife, creates an additional remedy, which may or may not be adopted.

It is proper to remark that Davidson v. Biggs was decided xxnder the Code, and, while the change in the statute is not in terms mentioned, it is difficxxlt to see how the case could have been decided as it was without a consideration of such change. Counsel insist that thei*e is a conflict between the case last cited and Polly v. Walker, 60 Iowa, 86; but we think they are readily distinguishable. In the last case the caxxse of action on the account was at no time suspended by the act of either husband or wife, and upon this ground the decision is placed. In the subsequent case of Frost v. Parker, 65 Iowa, 178, it must be assumed that, although a judgment on the xxote had been recovered against the husband, the caxxse of action against the wife on the account was not barred, because it was not barred on the note given by the husband.

2. practice on appeal: excessive mitti?ur.l1; It is conceded by the appellee tliat the judgment against appellant is for more than she was liable for. Whether appellee had knowledge of this fact before the appeal was taken is not certain. No motion was made in the district court to correct the obvious error, but appellee, upon being served with notice of appeal, caused a notice to be served on the clerk below to correct the error, and a similar notice was served on appellant. Whether the clerk in vacation could correct such j udgment we need not determine. The appellee did all he could, and the appellant, as to the excessive part of the judgment, could have safely abandoned the appeal. If, therefore, the plaintiff remits the excessive portion of the judgment in the court below within thirty days after the filing of this opinion, the judgment in the court below will be affirmed with costs, but if no such remittitur is entered, then the judgment below must be

Beversed.