Ross v. O'Neil

Gould, Associate Justice. The statute provides that “where the husband or wife dies intestate, leaving no child' or children and no separate estate, the common property passes to the survivor charged with the debts of the community, and no administration is required.” (Paschal’s Dig., arts. 4642, 5498.) The petition stated a case within the statute, and sufficient, in the absence of exceptions, to support a judgment subjecting the common property in the hands of Mrs. Boss to the [601] ■plaintiff’s debt-, unless, as contended by appellant, it was necessary, not only to allege that she held community property, but also that it was over and above that which is reserved from forced sale under the Constitution and laws of the State. If the community property in her hands was exempt from forced sale, that was a matter of defense for her to set up, and the petition was, we think, sufficient, without any averment on that subject. The judgment was rendered against her personally, but as there was evidence that she had disposed of the community estate to an amount in excess of the judgment, a state of facts which, under proper pleadings, would authorize a personal judgment against her, and as there is no assignment of errors covering any such question, this objection to the judgment may be considered as waived. The assignment that the verdict of the jury is uncertain in amount, is not supported by the record. The verdict fixing the balance due on the note was responsive to the charge of the court, and was substantially a verdict against the defendants for that balance. Other errors assigned, but not discussed in appellant’s brief, need not be noticed. The judgment is affirmed. Affirmed.