McMillan v. Hurt , 35 Ala. 665 ( 1860 )

STONE, J.

The only question argued in this case, arises on the construction of sections 1987 and 1988 of the Code. A suit, in the usual form, was prosecuted, and a judgment recovered, against appellant’s husband, — he being sued alone. Execution on that judgment being returned “ not satisfied,” a notice was issued to Mrs. McMillan, under section 1988 of the Code, as the owner of a separate estate under the act of 1848. It alleged, that her separate estate was liable for “ articles of comfort and support of the household”, &c., embraced in the recovery against her husband. It is here urged, that no recovery can be had against the estate of Mrs. McMillan, because, in the suit against her husband, the demand is not described as one for which her separate estate is liable under section 1987. The suit against the husband, as we have said, was in the usual form, and gave no notice that any attempt would be made to subject Mrs. McMillan’s separate estate to its payment.

We think the ruling of the circuit court on this question was free from error. There is nothing in the statute which, in the suit against the husband alone, requires the averment, that the contract on which suit is brought, was “ for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law.” Nor can we conceive of any good result which such averment would accomplish. The existence or non-existence of these facts does not necessarily enter into the husband’s liability; and the ascertainment of their existence, in a suit against the husband alone, would furnish no evidence of their truth, in the trial of a motion against the wife’s separate estate. Nor can it be necessary to enlarge the statute by construction, and require that the husband shall have notice of the motion.

Judgment affirmed.