Ackley v. Maggi

KOFORD, P. J.

appeals from a judgment in Plaintiff favor of defendant, a married woman.

The complaint alleged “that the defendant became indebted to plaintiff’s assignor A. W. Morton (a physician and surgeon) upon an open book account for medical and surgical services rendered to said defendant upon the special instance and request of said defendant.” The proof failed to show any book account except one with the defendant’s husband who was not a party to the action. This statement might seem to dispose of the case, but the defendant’s answer and the proceedings at the trial were such that we must consider whether the plaintiff is entitled to a judgment against the wife for debt irrespective of the absence of any book account with her.

[633]

The defendant’s answer denied “that she ever became indebted to said physician upon an open book account or upon any other account or in any other manner, etc.” It is true, as contended for by appellant, that.averments of an answer may supply vital allegations omitted from the complaint, but it is doubtful whether a mere denial in the answer, however sweeping, has this effect. Such effect is usually only obtained by affirmative allegations or new matter and not by mere denials.

(Vanalstine

v.

Whelan,

135 Cal. 232 [67 Pac. 125];

Windsor

v.

Miner,

124 Cal. 492 [59 Pac. 386]; Pomeroy’s Code Remedies, 4th ed., sec. 470 [[579]].) The defendant’s answer, however, went further and set up a special defense, alleging that she had no separate property; that she was not living with her husband at the time the services were rendered, obviously pleading herself out from the provisions of Civil Code, section 171, which provides for what debts a married woman’s separate property is liable. The answer also alleged that she was divorced from her husband, but this, according to the briefs, was at a date after the physician rendered the services.