Marion v. Regenstein & Co.

McCLELLAN, J. This action is prosecuted by Begen-stein & Co. against Georgie Marion. The complaint contains two counts, the first on a note executed by Georgie Marion with waiver of exemptions, and the second on an account for goods, chattels and merchandise sold defendant by plaintiffs. Judgment in due course was taken by default. This judgment was manifestly under the first count, since it contains a declaration of waiver of exemptions. Afterwards, motions were severally made by Georgie Marion to set aside the judgment by default, and by J. H. Marion, her husband, for a new trial. The gist of each of these motions lies in the fact that, at the time of executing said note, continuously since then, and at the times of judgment and motions made, Georgie Marion was a married woman, the wife of J. H. Marion, and the latter had not in writing assented to the execution of the note by her. Demurrers were sustained to each of these motions, and they were severally denied and dismissed. Georgie Marion took this appeal, and errors are assigned here separately by her and J. H. Marion. It is not readily, or at all, conceivable what standing J. H. Marion had on the record below to make any motion in the cause; he was not a party to the suit, nor in any legal sense to be affected by the judgment. His motion was for a new trial, which, even if he had been a party, he could not have made, since there had been no trial within the purview of our statute obtaining in the premises, and no motion for a new trial could be entertained.—Truss v. B. L. G. & M. R. R. Co. et al., 96 Ala. 316. And moreover he not only had no right to prosecute an appeal, but has not attempted to do so. For each of these several reasons further reference to him will be pretermitted. On this appeal the only question presented is as to the right of Mrs. Marion to have the judgment by default set [478] aside; lier motion was made solely to that end, and that is the only relief she seeks. The mode of .executing that judgment — the process by which, and the property out-of which it is to be satisfied — is not a matter involved in the case as it is presented to us. And hence this case is not within the principles declared in Callen v. Rottenbury, 76 Ala. 169, even if that case be conceded to be the law upon the point decided by it under existing statutes in relation to the status and property of married women. The contract executed by Mrs. Marion to the plaintiffs, the note sued on, was not a void contract, but voidable merely, and this at her election. — Scott v. Gotten, 91 Ala. 623. The time for this election to be made was when this suit was pending. If her purpose was to repudiate liability on it, it was then upon her to appear and plead her coverture, and facts showing that its disabilities with respect to this contract had not been removed by the assent in writing of her husband to her entering into it. It was not for the plaintiffs to aver the coverture and avoid the disabling attributes by further averring the husband’s assent. This was defensive matter appropriate only to a plea. The law always presumes the contractual capacity of the parties to a contract until the contrary is made to appear by averment and proof. It was, therefore, not upon the plaintiffs to allege and avoid defendant’s coverture. The complaint, without this, contained a perfectly good cause of action — the averment of a promise to pay by one whom the law presumed prima facie to have the capacity to make the promise, and a failure to comply with it. And if, in fact, the defendant had not the requisite capacity, she could and should, if her purpose was to avoid liability, have pleaded it.—1 Freeman on Judgments, 150; 1 Chitty Pl. §§ 743, 747; Reed Lumber Co. v. Lewis, 94 Ala. 626. The contract not being void, but open merely to a defense by the seasonable interpretation of which it could have been avoidable, the complaint containing a good cause of action, and the defense of coverture not having been interposed, the case is brought within section 2835 of the Code, which provides : “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of actionand we therefore hold that the lower court committed no error in sustaining demurrers to the defendant’s motion, and denying and dismissing the same. Affirmed.