Howell v. Martin , 36 Idaho 468 ( 1922 )

DUNN, J.

Respondent brought this action in the district court of Bannock county against appellant, setting up four causes of action. The first is on a promissory note for $500 signed by Frank C. Martin and Anna Martin; the second is for medical services rendered to Frank C. Martin by respondent amounting to $100; the third is for hospital services rendered to Frank C. Martin by the Sisters of Mercy of the St. Anthony Hospital at Pocatello; the fourth is for services in connection with the burial of Frank C. Martin, said services having been rendered at the request of appellant and she having promised to pay therefor. The last two claims were assigned to respondent before the bringing of this action. Anna Martin is appellant herein and Frank C. Martin was her husband.

On each of these four causes of action respondent sought and obtained a personal judgment against appellant, the aggregate amount of the judgment being $1,191.95, with interest thereon from the date of- the judgment, December 30, 1919, together with costs amounting to $27.25.

As to the first three causes of action it is clear that they do not state facts sufficient to support a personal judgment against appellant, • it being alleged that Frank C. Martin and Anna Martin were husband and wife and there being no allegation in any one of said causes of action “to show that the debt was contracted for the use or benefit of her separate property or for her own use or benefit, or in reference to the management, control or business transactions touching such property.” (Bank of Commerce v. Baldwin, 12 Ida. 202, 210, 85 Pac. 497.) The judgment, therefore, in so far as it depends on these three causes is void. (Black on Judgments, sec. 183; Harris v. Harris, 10 Wis. 467; Miller v. Trout, 33 Ida. 709, 197 Pac. 1023.)

On the argument at Pocatello the attention of the court was called to the fact that since the rendition of the judgment in this case respondent had died, and the motion to substitute the administrator of the estate of respondent was granted.

As to the first three causes of action the judgment of the trial court must be reversed. As to the fourth cause of action the judgment will be affirmed for $305 and the costs necessarily incurred in support thereof, which will be such costs as would have been necessarily incurred if the action originally had been brought on the fourth cause of action alone. The district court will determine the amount of such costs.

As to the fourth cause of action the judgment is affirmed for $305, plus the costs to be determined by the trial court. As to the first three causes of action the judgment is reversed and the trial court is directed to dismiss the same. Costs on appeal awarded to appellant.

McCarthy and Lee, JJ., concur. Budge, J., being disqualified, took no part.