McCurdy v. Baughman
McCurdy v. Baughman
Opinion of the Court
1. The allegation of the plaintiff below, in her
2. In Ohio, justices of the peace have jurisdiction only as conferred by statute, and in order that the decision of such magistrate should operate as an estoppel, it must appear from his record that the matter adjudicated was within the jurisdiction so conferred, and also it must appear that he had acquired jurisdiction over the person. This fairly appearing, however, the judgment of a justice of the peace is as impregnable against collateral attack as the judgment of any other court in the state. The State v. Daily, 14 Ohio, 91. Hence, the case would stand in no respect different if the judgment had been rendered by the court of common pleas.
3. The answer in effect admits the allegations of the petition, except so far as denied. No proof of the matters denied having been offered, the allegation of Mary Baughman, in her petition, that the note was given for the individual debt of John Baughman, and that she signed the note as his surety and at his request, may be regarded, for
The first question, namely, whether such judgment is void, is very distinctly answered in the negative by Callen v. Ellison, 13 Ohio St. 446. That was a case in which it was shown by the record that a member of the bar appeared in court, and producing the warrant of attorney of Rebecca Callen and others, confessed judgment against them for an amount specified therein, upon which judgment their land was sold. Rebecca Callen and other defendants were, at the time the warrant was executed, and also when the judgment was confessed, married women, though the fact did not appear in the record. No steps were taken to ¡set aside or reverse the judgment. Subsequently to the ■sale, the persons so under disability sought to obtain partition of the land, proceeding upon the theory that the judgment and sale were as to them merely nullities; but this court, in an able and instructive opinion by Gholson, J., unanimously held that the judgment and sale were valid «aid operated as a complete bar to partition, notwithstanding such coverture; and that decision has never been doubted or questioned in this court, but has been repeat
Undoubtedly a number of decisions have been found to be in opposition to Callen v. Ellison : Graham, v. Long, 65 Pa. St. 383; Swayne v. Lyon, 67 Pa. St. 436; Vandyke v. Wells, 103 Pa. St. 49 ; cf. Hartman v. Ogborn, 54 Pa. St. 120; Morse v. Toppan, 3 Gray, 411 ; Griffith v. Clarke, 18 Md. 457; Higgins v. Peltzer, 49 Mo. 152; Weil v. Simmons, 66 Mo. 617; Wernecke v. Wood, 58 Mo. 352 ; cf. Walker v. Deaver, 79 Mo. 664; Cary v. Dixon, 51 Miss. 593; Norton v. Meader, 4 Sawyer, 603. And see Brittin v. Wilder, 6 Hill, 242 ; Watkins v. Abrahams, 24 N. Y. 72 ; Hix v. Gosling, 1 Lea, 560 ; Swing v. Woodruff, 41 N. J. Law 469 ; 7 Rob. Pr. 157 ; Schouler on Hus. & Wife, § 289, note 5; Bigelow on Estoppel (3d ed.) 61, 62; 1 Dan. Ch. Pr. (5th Am. ed.) 186, note by Chancellor Cooper.
With respect to some of these cases a brief explanation is proper. Morse v. Toppan, which is an opinion of ten lines by Chief Justice Shaw, has not been followed in Massachusetts, and although not overruled, it is much shaken by Reid v. Holmes, 127 Mass. 326, 329, where Gray, C. J., remarked: “In Morse v. Toppan, 3 Gray, 411, the judgment which was held void was against a married woman alone, in an action brought against her upon a contract made by her during coverture, while she was incapable by law of contracting or being sued; no argument was submitted for the plaintiff; and in the only case cited by the court (Faithorne v. Blaquire, 6 M. & S. 73), the judgment was set aside on motion.” And see Frieson v. Bates College, 128 Mass. 464. Cary v. Dixon, though not overruled, is limited in Taggert v. Muse, 60 Miss. 870, which is an authority that the judgment against Mrs. Baughman is not void. Norton v. Meader was affirmed (11 Wall. 442), but in the supreme court the general question of the validity of a judgment against a married woman was not considered. Hix v. Gosling, though an able opinion, is not an authority that such a judgment is void, but if it could be so considered, Crawford v. Crawford, 1 Tenn. Leg. Rep. 37, is a direct
While it is probable that the courts of Pennsylvania, Maryland, Missouri, and Mississippi would arrive at a conclusion, in a ease like Callen v. Ellison, exactly the reverse of that reáched by this court, it does not follow that all of them would hold the judgment in this case to be void; for in several cases the point decided was, that a married woman’s warrant of attorney being void, the court did not acquire jurisdiction to render judgment pursuant to it, and hence, like the warrant, the judgment was void; but here, as the case stands before us, the note may have been given for the debt of Mrs. Baughman, contracted dum sola, and hence the action and judgment against both may have been entirely proper. Placing the case, however, on the broader ground that the debt was of such a character that the plea of coverture would have been a complete defense, our duty to hold the judgment not to be void, and thus to adhere to Callen v. Ellison, is very plain ; for the doctrine there enunciated is, as Mr. Freeman and Mr. Bishop show (Freeman on Judgments, § 150 ; 2 Bish. Rights Mar. Women, § 886), sustained by the better reason and greater weight of authority, and a somewhat laborious examination of the eases leads us to the same conclusion. Green v. Branton, 1 Dev. Eq. 500; Frazier v. Felton, 1 Hawks, 231; Vick v. Pope, 81 N. C. 22; Boraback v. Stebbins, 3 Keyes, 62; s. c. 4 Abb. App. Dec. 100; First National Bank v. Garlinghouse, 53 Barb. 615 ; s. c. 36 How. Pr. 369; Palen v. Starr, 14 N. Y. Supreme Court, 422; Smith v. Dunning, 61 N. Y. 249 ; Wilson v. Coolidge, 42 Mich. 112; Howard, v. North, 5 Texas, 290; Cayce v. Powell, 20 Texas, 767; Taylor v. Harris, 21 Texas, 438; Laird v. Thomas, 22 Texas, 276; Bullock v. Hayter; Baxter v. Dear, 24 Texas, 9, 17; Gambette v. Brock, 44 Cal. 78; Spalding v. Wathen, 7 Bush (Ky), 659 ; Wolf v. Van
The judgment of the justice of the peace not being void, not having been set aside, and not having been reversed on error coram nobis, as it might have been, is, so long as its enforce ment remains unrestrained, as valid and effectual as any other judgment whatever, and the real estate of Mrs. Baughman, inherited from her father since coverture ceased, must be subjected to its payment, unless the sale be enjoined on the sole ground that she was a married woman when the judgment was rendered. But such fact of itself, under the circumstances of this case as we must now regard them, affords no ground of equitable interference; nor will a court of equity interfere unless the facts bring the case within some such ground of relief as fraud, collusion, or coercion. Ruffin, C. J., states the principle in Green v. Branton, supra, and many of the eases above cited are to the same effect; and the statutory provisions in relation to married women in force when the note was executed, and still in force (67 Ohio L. 111, § 28 ; Rev. Stats., §§ 3108, 3109, 3110, 4996, 4997), no less than the course of decision iu this state, afford a sufficient answer to the suggestions in Hix v. Gosling, supra. In favor of women so under disability, however, any obstruction or interference, especially by the husband, which may fairly be said to have induced her not to defend, may well afford ground for an injunction ; but nothing of the sort appears here.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.