Gould v. McFall

Mr. Justice Gordon

delivered the opinion of the court, January 4th, 1886.

The 8th section of the Act of the 11th of April, 1848, provides : “ That judgment shall not be rendered against the wife in such joint action unless it shall have been proved that the debt sued for in such action was contracted, or incurred, for articles necessary for the support of the family of the said husband and wife.” As, according to the cases of Murray v. Keyes (11 Ca. 384), and Parke v. Kleeber (1 Wr. 251), the word “ or,” as found in the above recited section, must read “and,” there can be no judgment against a feme covert except on proof that the debt was contracted by the wife, “ and incurred for articles necessary for the support of the family of said husband and wife.” Now, as the judgment in the ease before us was rendered in the Common Pleas, on a motion for want of appearance, clearly the statutory proof was wanting, and the court had no warrant for its action. But more than this, the proceedings before the alderman were coram non judice, since her liability, as defined by the Act, nowhere appears on the face of his transcript. It follows that his judgment as to her was not merely .voidable, but absolutely void: Hecker v. Haak, 7 Nor. 238. There was, therefore, nothing in the Common Pleas which gave it jurisdiction over the person or estate of the married woman, defendant; for the appeal, being from a void judgment, it brought into that court nothing upon which it could act.

The judgment of the Court of Common Pleas, so far as it affects Mrs. Gould, is now reversed and set aside.