Smith v. Hume

HAINES, P. J.

The plaintiff and respondent sues in three counts as assignee of J. C. Austin, alleging that the defendants and appellants are husband and wife. The first count of the complaint alleges a balance due from defendants on an open book account for dental services incurred within the four years next prior to the filing of the complaint on May 17, 1937, in the sum of $30. The second count alleges an indebtedness by defendants in a like sum of $30 on an account alleged to have been stated on or about June 1, 1935, based on an account of more than one item, the date of the last item having been May 17, 1935. The third count is upon a promissory note of date May 17, 1935, given by Phylip Hume alone for $30 and interest. The defendants answered separately. The effect of the answer o f Phylip Hume is to deny that Mary B. Hume, whom he admits to be his wife, was in any way connected with the transactions involved, to deny the assignment to the plaintiff and respondent, and, as to the first count of the complaint, to admit the incurring of the debt but to allege payment, to deny the account stated alleged in the second count of the complaint and allege the giving of a note by himself alone for the debt; and, as to the third cause of action, to admit the giving by himself alone the $30 note. The effect of the answer of Mary B. Hume

*Supp. 749

is to deny generally the allegations of the complaint except that she is the wife of the said Phylip Hume. The defendants, having failed to appear at the trial, judgment was given by the municipal court against both of them for $30 and interest from May 17, 1937, with costs.

Both defendants have appealed from the judgment and both have also appealed from an order denying their motion to release from attachment and execution a certain Studebaker automobile.

It is claimed on behalf of defendants and appellants that the judgment against Mary B. Hume cannot be sustained for the reason,

inter alia,

that the giving of the note set up in the third count of the complaint amounted to a novation and superseded prior transactions and that since she was not a party to the note she cannot be holden. Unfortunately for defendants and appellants, they did not appear at the trial or make objections at that time to any evidence that may have been produced and, moreover, have failed to have settled or present here any statement on appeal, so that we are, in considering their appeal from the judgment, confined to an inspection of the judgment roll. We cannot, from that alone, say that the judgment was necessarily based on the third count of the complaint, nor does the mere fact that interest was allowed demonstrate that such was the case.