Asbury v. Odell , 83 Mo. 264 ( 1884 )

Martin C.

This is an action against the defendant as maker of a promissory note, and was commenced before a justice of the peace. On appeal to the circuit court, judgment was rendered in favor of defendant, from which the plaintiffs appeal. The note is dated October 14, 1876, and purports to have been executed by David C. Odell and Mary J. Odell, who therein promise, for value received, to pay to Susan R. Asbury, on or before October 1, 1877, the sum of $85. Various credits appear to have been received towards payment.

The defence consists of a plea of former recovery. The plea was supported in the evidence by a transcript of a record of a suit and judgment before a justice of the peace, in favor of the plaintiffs herein, and against the defendants, David O. Odell and Mary J. Odell, on the same note sued on in this case. It is admitted that Mary J. Odell is the wife of David O. and was such at the execution of the note. On the evidence the court very properly declared that the plaintiffs could not recover.

It is insisted by plaintiffs that the judgment against said Mary J. is void on account of her coverture. It is then argued that the judgment as an entirety is necessarily void, also, as to David 0., the defendant herein. Conceding for purposes of the argument, that the judgment i© void as to one of the defendants therein, the position that it must be treated in a collateral proceeding as void as to the other defendant, cannot be maintained in this-state. It has been frequently decided in this court that a joint judgment, void as to one defendant for want of service of process, is valid as to the other, when assailed in a collateral proceeding. Lenox v. Clarice, 52 Mo. 115 Hardin v. McCause, 53 Mo. 255 ; Carlin v. Cavender, 56 Mo. 286; Bailey v. McGinness, 57 Mo. 362; Holt Co. v. Harmon, 59 Mo. 166. The same rule has been applied to judgments which erroneously included the wife with the husband. Although void as to her, they have been invariably sustained as to him, except when attacked in a direct - proceeding to vacate them, or on appeal. Wernecke v. Wood, 58 Mo. 353; Watkins v. Abrahams, 24 N. Y. 72; Dorrance v. Scott, 3 Wharton (Pa.) 314; Higgins v. Peltzer, 49 Mo. 157; Weil v. Simmons, 66 Mo. 617. It is, perhaps, proper for me to remark here that it does not appear from the record given in evidence that Mary J. was the wife of David C. Odell. She might have been his sister so far as the transcript discloses. Under our present practice act a married woman, when sued with: her husband, can defend by attorney, either with or without him. I think the absolute nullity of judgments rendered against a married woman obtains principally in cases in which the record discloses her coverture and consequent inability to contract or incur the debt or liability for which the judgment is given. Such, I believe, are-the cases in which the principle has been recognized in this state. It is unnecessary, however, to express any opinion on this point, or to define the limits within, which the rule should be applied. The judgment in evidence was valid against the husband, in either event,, whether void or merely voidable as against the wife.

In pursuance of these views the judgment is affirmed.

All concur.