Barnett v. Marks

Mr. Presiding Justice Shepard

delivered the opinion oe the Court.

The appellant concedes that house rent is a family expense for which, under our statute, both husband and wife are * liable, whether the wife signed the lease or not, but insists that where the husband alone signs the lease and then sublets a portion of the premises to any other person who proceeds to occupy such sublet part, the wife is no longer liable; and it is assigned and argued as error that the trial court refused to hold the following proposition of law, viz.:

“ That if any portion of the premises described in the lease introduced in this cause was sublet by Abraham Barnett to any other person than Lena Barnett, his wife, for the month of April, 1896, and were occupied by such person or persons to whom sublet, then the defendant, Lena Barnett, is not liable in this cause.”

Such proposition was rightly refused.

Although it seems to have been established that some time after the making of the lease, and the occupancy of the premises by the appellant, a part of the house was sublet, it was sufficiently established to justify the trial court in finding that appellant remained in the premises, occupy ing the same, or a part thereof, as the home of herself and some of the younger children of herself and her husband, from the beginning of the lease continuously until some time in the last month of the term, which was the month fcr which the recovery was had. Ho such evasion of the statute as the refused proposition of law would uphold, should be tolerated. It would be an encouragement to the fraud that the statute was enacted to prevent (Sec. 15 of the Husband and Wife Act), and appellant cites no authority in support of the proposition.

It is further contended that appellant’s co-defendant, Abraham Barnett, was not brought into the case in the Superior Court either by service of an appeal summons, or by his entry of appearance, until after the cause was placed upon the short cause calendar; and was never served with notice to place the same upon said calendar.

That contention may be briefly disposed of by saying that the abstract of record which is presumed to present everything that is material to the appellant’s case, does not show that any judgment was ever recovered against Abraham Barnett before the justice of the peace.

The liability of the appellant, under the statute, was several, as well as joint with her husband, and- it was not necessary to a recovery against her that there should also be a judgment against him, and if there were no judgment against him before the justice, it was not necessary that he should be a party before the Superior Court.

hTo error appearing, the judgment is affirmed.