Evans v. Cleary

[209] Opinion, Mr. Justice Williams : The claim of the plaintiff is for necessaries furnished to Mary A. Evans, who was ■ then and still is a married woman. She was domiciled in Chicago in the state of Illinois, where she contracted for the goods with Cleary, a grocer of the same city. The statutes of Illinois provide that a married woman may make contracts and incur liabilities in the same manner as if she was unmarried, and that such contracts §nd liabilities may be enforced against her separately; with the proviso that she may not enter into a partnership contract without his consent, unless he has deserted her or become insane or is confined in the penitentiary. Section 15 of chapter 68 of the statutes of Illinois also provides that “ the expenses of the family and the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor ; and in relation thereto they may be sued jointly or separately.” Under the laws of the state in which the parties were domiciled and the contract for necessaries made, Mrs. Evans was competent to contract and liable to be sued in the same manner as if she had not been married. Cleary brought an action upon the contract of Mrs. Evans against her alone, and recovered a judgment before a justice of the peace in the city of Chicago for the amount of the necessaries furnished her. In 1885 this action was brought in the Common Pleas of Chester county by foreign attachment, and a legacy due Mrs. Evans was attached. It is now urged that the legacy was protected from attachment by the proviso in the foreign attachment law of 1842; that there can be no recovery against her without her husband is joined in the action and judgment; and that the statute of limitations is a defence to this action, as the action was not brought within six years after the rendition of the judgment in Chicago. The act of 1848 restrained the marital rights of the husband and relieved him from liability for debts contracted by his wife before marriage. It secured to her the ownership and enjoyment of her separate property, but it subjected it to seizure for her debts contracted before marriage, for necessaries contracted for by her after marriage, and for her torts. For debts and demands belonging to the classes just enumerated, the act of 1848 declares that executions “ may be levied upon and satis [210] fied out ..of the separate property of the wife secured to her under the provisions of the first section of this act.” This language is comprehensive enough to embrace legacies and distributive shares due to married women and subject them to seizure for demands like that on which this attachment issued. As to the non-joinder of the husband, it is only necessary to say that the contract which the plaintiff is seeking to enforce was not made in this state, where prior to the act of 1887 such joinder was necessary, but in the state of Illinois, where Mrs. Evans lived, and where she was competent to contract and liable to be sued without regard to her husband. In all matters relating to the remedy merely, the lex fori prevails, but the liability of a party to a contract depends on the lex loci contractus : Greenwood v. Curtis, 6 Mass. 358; Swan v. Swan, 21 Fed. Rep. 299; Thompson v. Ketcham, 8 Johns. 146; Smith’s and Wolff’s Appeal, 104 Pa. 381. This question was also considered in the recent case of Spearman v. Ward, 114 Pa. 634, in which an effort was made to enforce the contract of a married woman made in Ohio. The action was against her, and it failed, not because the contract was not clearly proved, but because it did not appear that she was competent to make it, and liable upon it, by the laws of that state. The remaining question is, whether the statute of limitations is a bar to this action. The plaintiff’s right of action upon a transcript of a judgment, rendered by a justice of the peace of another state, is given b'y the act of 1845. In the fourth section it is provided, that “ the plaintiff, or the party in interest in such cases, shall, as evidence of his demand, produce on the trial a copy* of the record or docket-entry of the proceedings had before the justice who tried the original action, with his affidavit thereunto annexed, certifying the same to be a true and full copy of the record of the proceedings had before him, and that the judgment remains in force, and has not, to his knowledge, been vacated, annulled, or in any manner satisfied.” This certificate is to be supplemented by one from the clerk of the court of Common Pleas of the county, setting forth that the person before whom the proceedings purport to have been had, was at the time an acting justice of the peace, duly commissioned and qualified. This “ copy of the record or docket-entry of the. proceedings ” is admitted under the authority of [211] this statute as proof of the fact that the plaintiff has recovered a judgment against the defendant in the state from which it is brought, and upon it the plaintiff is entitled to recover a judgment here, unless the defendant can show some reason for refusing it. This copy of a justice’s judgment does not have the conclusive effect given to the judgment of a court of record, but it is evidence prima facie of what appears upon its face, viz., that the liability of the defendant has been passed upon by a court competent to do so, and a judgment rendered against him. It is not the note or account sued on in the state from which the transcript comes, but the judgment rendered upon it that is the plaintiff’s cause of action, and that is evidenced in the manner prescribed by the act of assembly. The note or account has been merged in tbe judgment rendered upon it by tbe foreign justice, and makes no part of tlie plaintiff’s case. The statute cannot be interposed, therefore, unless applicable to tbe justice’s judgment. No statute of Illinois lias been brought to our attention which puts tlie judgment of a justice of tbe peace on tbe same footing witb ordinary simple contract debts as to tbe statute of limitations, and in tlie absence of proof upon tbe subject tbe law of Illinois will be presumed to be tlie same as our own. The statute of limitations does not take effect upon the judgment of a justice of the peace in Pennsylvania at the end of six years, and is not a defence in this case. The judgment is therefore affirmed.