Platner v. Patchin

[335] By the Court, DixoN, O. J. In an action against the husband for the debt of the wife, contracted dura sola, the wife must be joined. 1 Chitty’s Pl., 57. There are some exceptions to the rule, as where the husband has made a subsequent express promise to pay; but this case is not one of them. The defendant Jane Patchin is therefore a necessary party. And as to her there is a former action pending. The foreclosure judgment directs, that upon the coming in and confirmation of the report of sale, personal judgment be rendered against her for the deficiency, and that the plaintiff have execution therefor. The report has been made and confirmed,, and the deficiency ascertained, but no personal judgment has been entered. So far as such entry is concerned, the foreclosure action must be regarded as still pending and undetermined. The plaintiff has the order for it, but has not entered the personal judgment. In so far as the plaintiff asks in this action to have the order for a personal judgment in that action vacated, we think he has mistaken his remedy. He should have moved in that action, and, having -pcated the order, his proceedings in this would have been regular. Or he might, perhaps, have perfected judgment for the deficiency, and then have sued the husband and wife upon that judgment. But he cannot sue the husband and wife, and in that suit ask to have a former suit, commenced against the wife before the marriage, abated, or an order made in such former suit vacated. We know of no precedent for such an action. Now the wife being a necessary party to the action to enforce the liability of the husband, and it appearing on the face of the complaint that there is a former action pending against her, her demurrer was well taken, and the motion for judgment for the frivolousness of the demurrer and answer properly denied. We see nothing in the answer of the husband which merits serious consideration. It is obviously frivolous. The statute for the protection of the rights of married women, whilst it greatly enlarges the privileges of the wife, does not restrict [336] tbe liability of tbe husband. He must pay tbe same as before, and if be does not, tbe creditors of tbe wife can sue and make bim pay if be is able. In this particular the modern husband is twice happy. First, be is happy as tbe quiet spectator of his wife’s enjoyment of her property; and again be is bappy in paying her debts, or, if be refuses, in being sued and compelled to pay. Order affirmed.