#### Charles N. Baldwin, plaintiff and respondent, *vs.*Elizabeth C. and Alexander F. Kimmel, defendants and appellants.

1. Under sections 274 and 287 of the Code as amended in 1862, relative to actions against married women, it is only the cause of action against or liability of a married woman defendant that is to be tried in the action against her. The determination of the mode of satisfying the amount recovered is postponed until the execution. The judgment does not cease to be *m rein,*although formally *in personam;*it is only to he enforced against a particular kind 'of property.

2. It is still necessary, in an action against a married woman, to allege in the complaint the facts creating her peculiar liability for an act relating to her separate estate, or relating to trade carried on by her for her own benefit.

3. A married woman can not be arrested in a civil action.

4. In all cases of a judgment against a married woman, it should he expressly stated therein that the amount is “ to be levied or collected out of her separate estate and not otherwise,” and the execution should follow the judgment, m its terms.

5. A mere absolute judgment *in personmn*against a married woman, recovered prior to 1862, is not sufficient to entitle the creditor to sue her thereon, and recover a judgment against her separate property. The creditor in such action on the judgment must also establish, at least, that the original cause of action was such as to entitle the plaintiff to a judgment against her separate estate.

6. The jurisdiction of a court to render a judgment was in this case allowed to be impeached fourteen years after its entry, by proof that the process was never in fact served on. the defendant.

7. A promise to pay a judgment does not preclude the defendant from showing that the court was without jurisdiction to render it, for want of service of process, nor is it any evidence that process was in fact served.

(Before Robertson, White and Barbour, JJ.)

Heard June 4,1863;

decided July 11, 1863.

This was an appeal from a judgment entered upon the report of a referee.

The action was brought by Charles N. Baldwin, upon a judgment recovered in this court in 1849, by Joshua P. Humphreys and others, against the defendants, Elizabeth C. Kimmel and Alexander F. Kimmel, for $169.45. The answer of the defendant Elizabeth consisted of a denial of the allegations in the complaint, an averment that "no summons in the *110original action had been served on her, and that at the time of the alleged recovery of said judgment she was, and still continues a married woman, the wife of the defendant Alexander.

The action was referred to Hon. Murray Hoffman, as sole referee, to hear and determine.

The judgment recovered in 1849 was upon a promissory note. The complaint in that action did not expressly seek to charge, her separate estate ; it was not alleged in it that the note was given for E. 0. Kimmels benefit, or that of her separate estate, or that she had any separate estate. It was admitted on the trial in this action that she was, at the time of the making of the note upon which the judgment was recovered, and at the time of the recovery of the judgment, and still is, the wife of the defendant Alexander F. Kimmel. The plaintiff had judgment against the defendant E. 0. Kimmel, absolutely; and she now appealed therefrom.

*D. Noble Rowan,*for the defendant, appellant.

I. The appellant, by reason of her coverture, was not liable on the note upon which the original judgment was recovered. That contract was, as to her, void. *(Yale*v. *Dederer,*18 *N. Y. Rep.*265. 22 *Id.*450.)

II. The appellant has not waived this defense by omiting to plead in the former action.

1. A married woman, though she had in equity a power of disposing of her separate estate,' is incapable of making a contract personally binding upon her either at law or in equity. The statutes of 1848 and 1849 have not changed the law as respects her capacity. (*Yale*v. *Dederer, supra.)*

2. In accordance with this doctrine, her promissory notes, bonds and other obligations have uniformly been held void. (2 *Kent’s Com.*164. 2 *Story’s Eq. Juris.*§§ 1399, 1401. *Gardner*v. *Gardner,*22 *Wend.*526.) And a confession of judgment by her is void. (*Wotkyns*v. *Abrahams,*14 *How. Pr.*191. *Brittin*v. *Wilder,*6 *Hill,*242.)

3. It is claimed, however, that a feme covert can do that indirectly which the law does not permit her to do directly. *111This position is entirely at war with principle, and unsustained *by*authority.

4. Coverture incapacitates from any and every contract, except such as arise from the *jus disponendi. A*contracting capacity is required, in order to waive a *right;*aud it must he borne in mind that the personal contracts of a married woman are not voidable merely, but void. (1 *Pars. on Cont.*286, 359, 362, *note.)*The cases relied upon by the respondent fall far short of sustaining the referee’s decision in this case. There is no case wherein an attempt by a plaintiff to enforce a judgment *in personam*against a married woman has been aided by the courts.

III. Formerly, a debt in a case like this might be relieved upon a writ of error *coram nobis, (Tidd’s Pr.*1135, 1136,) and though this was not strictly a writ of right, yet the court could not refuse the writ, when error in fact outside the record plainly appeared. *(Higbie*v. *Comstock,*1 *Denio,*652.) Now the writ of error is abolished, and the only manner of reviewing a judgment is by appeal. *(Code,*§ 323.) And no appeal can be had from a judgment by default. *(Pope*v. *Dinsmore,*8 *Abb. Pr.*429. *Stewart*v. *Morton, Id.*429, *note.)*And no way is provided for the assignment of errors in fact. The remedy by motion is addressed to the ^discretion of the court. *(Genet*v. *Dusenbury,*2 *Duer,*679.) The Code is not to be construed so as to deprive the ■ defendant of any rights she would have had before; but having abolished the former remedy,, it leaves to'her the privilege of asserting her rights by answer. *(Code,*§ 150.)

IV. The complaint set forth a personal judgment, and asks for a judgment of the same kind. It is defective in not alleging that the debt (the judgment) was contracted for the benefit of her separate estate—or that she has any separate estate. *(Dickerman*v. *Abrahams,*21 *Barb.*551.) The amendment of 1862, to section 274 of the Code, does not affect or alter the rules of pleading. It only relates to the form of the judgment.

V. We have assumed that the summons in the original *112action was served on the appellant. We insist, however, that there was no such service, and that the referee should have found for the appellant on this ground.

1. This defense can be set up, and is available in this action. It goes to the question *of*jurisdiction, and is always held a good defense. *(Starbuck*v. Murray, 5 *Wend.*148. *Noyes*v. *Butler,*6 *Barb.*613. *Dobson*v. *Pearce,*12 *N. Y. Rep.*156.)

2. This is a case where a court of equity would undoubtedly give relief, and where we can avail ourselves of our equitable rights by answer. *(Dobson*v. *Pearce, supra.)*

*Reuben W. Van Pelt,*for the plaintiff, respondent.

I. Coverture, like infancy, usury, the statute of limitations must be pleaded; if not, it will be deemed waived. It is not competent, even on appeal from a judgment, to raise, for the first time the question of coverture, when it has not been pleaded, although the evidence shows the facts to have existed. *(Castree*v. *Gavelle,*4 *E. D. Smith,*425.)

II. The judgment is not void, but is a valid and binding judgment until reversed, and no proceedings whatever have been taken to vacate or reverse the judgment in question. *(Genet*v. *Dusenbury,*2 *Duer,*679.)

III. Ho fraud or unfair means were practiced against the defendant to recover the original judgment, and she had acquiesced in it for fourteen years. There can scarcely be a doubt but that Mrs. Kimmel was served with the summons and complaint, and if any irregularity existed in the manner of entering and the form of the judgment against her, it should have been corrected by motion. Mere irregularities do not render judgments, absolutely void. *(Ingersoll*v. *Bostwick,*22 *N. Y. Rep.*425.)

By the Court, Robertson, J.

The defendant is a married woman, and the present action seems to be brought against her in order to obtain the benefit of the amendment of section 274 of the Code, passed in April, 1862, whereby judgment was authorized to be given against a married woman for costs and *113damages to fee levied *of her separate estate;*and also of section 287, authorizing the issuing of executions against married women to be levied *of their separate estate.*These amendments, which extended the provisions passed in 1853, relative to contracts of a wife before marriage, *(Laws of*1853, *p.*1057, *ch.*576,) to all her liabilities, left the right of action against, or the liability of, a married woman to be tried in the action, and postponed the determination of the mode of satisfying the amount recovered to the execution. The judgment thereby did not cease to be *in*rent, but became nominally *in*personam, only to be enforced against a particular kind of property.

These amendments would, of course, not do away with the necessity of alleging in the complaint and showing the liability of a married woman, for an act relating to her separate estate or trade, carried on by her under the act of 1860, *(N. Y. Sess. Laws*1860, *p.*157, § 7,) or generally whatever was necessary to show her liability. A woman may be arrested for a willful injury to person, character or property; and therefore judgment may be obtained against her for damages for such misconduct, (Co*de,*§ 179,) but this has been held not to apply to married women, *(Anon.*1 *Duer,*613; *S. C.*8 *How.*134,) and no such remedy could be enforced against one.

The amendments of 1862, therefore, leave undetermined several important questions, whether a married woman, against whom a judgment has been obtained, may bé subjected to supplementary proceedings as regards her separate property; whether on a judgment against a married woman for a tort her separate estate may be levied on; whether she can give a confession of judgment, *(See Wotkins*v. *Abrahams,*14 *How.*191; *Person*v. *Warren,*14 *Barb.*488,) and whether a new action can be commenced on a judgment against her for any cause, so as to enable the plaintiff to make her separate property liable on execution; in other words, whether a married woman is to be considered in all respects as a feme sole in regard to her liability, and the judgment in an action against' her; except as to the mode of enforcing such judgment.

At common law a married woman could have no personal *114property, except choses in action not reduced to possession, and they could not be levied on, and her separate personal estate could not be reached on a mere judgment. On a judgment, therefore, against her personally, only her real estate, while her husband lived, or her personal estate acquired or reduced to possession after his death, could be reached by execution.

A fair interpretation of the two amendments of sections 274 and 287, in 1862, seems to require that in all cases of a judgment against a married woman, it should be expressly stated therein that the amount is *“to be levied or collected of her separate estate and not otherwise*,” as in judgments formerly against executors or administrators; and the execution of course should follow the judgment in its terms. As a plaintiff, therefore, can hereafter get no more, or less, by such a judgment hereafter obtained, than he would have by the first one, he probably would be entitled to sue upon it, in all cases: At the time of the recovery of the judgment sued upon in this case, (1849, August 1,) it depended upon the form of the judgment, whether only the real estate of the defendant could be levied on, and all remedy against her personal property must be postponed until her husband’s death or not. It was in form a general judgment *in personam,*to be enforced by all the means by which such a judgment could be enforced, but by no other. The only judgment which can now be given is one to be enforced against the *separate*property of the defendant, and in order to warrant that, it should now be alleged and shown either that the original cause of action, on which the first judgment was obtained, or that such judgment itself warranted it. A mere absolute judgment *in personam,*which could not have been enforced against the defendant’s personal property .until her husband’s death, and never could have been enforced against her separate estate, obtained before the change in the law, would not warrant such a new judgment. All contracts or acts of married women which would in any way make them liable, would, if made after the passage of the amendatory statute of 1862, subject their separate estate, and it only, to the provisions of that statute. In order to obtain the benefit *115of the change in the law, by a judgment to be levied upon the separate property of the defendant, I think the plaintiff was bound to establish, at least, that such separate property could have been reached on such original judgment, although not so expressly declared in it; in other words, that the original cause of action was such as to entitle the plaintiff to a judgment against the separate estate of the defendant.

Otherwise the effect of the amendments of 1862 would.be, to allow the plaintiff to reach property on the faith of which the original liability never was incurred, which could not then have been applied to its satisfaction, but which the legislature now by a species of confiscation is presumed to apply for that purpose, thus stripping every married woman in this state of her vested rights under any deed of trust in her favor. An intention not to be presumed, even if the act itself were constitutional. The language of such amendments is imperative “of her separate estate and *not otherwise.”*As, therefore, the judgment was obtained before the passage, of the act of 1862, and the pleadings, in the action in which it was recovered, show it was obtained on a promissory note claimed to be made by the defendants, I think the plaintiff was bound to establish that ' it was, when made, binding upon her separate estate, before he becomes entitled to a judgment to reach .that now which is, the only judgment he can get.

The decision of the referee giving judgment, therefore, against the defendant without proof that her separate estate was liable, or that the liability arose since April, 1862, was erroneous and ought to be reversed for that reason alone.

But the original judgment was only against *E. C.*Kimmel and Alexander Kimmel. In the *complaint*therein it was alleged that *E. G.*Kimmel made the note sued on. The affidavit of service of the complaint and summons was upon *E. G.*Kimmel only. Nothing appeared on the record to show that *Elizabeth C.*Kimmel was the defendant intended, or that she was a married woman. There is no evidence in this case to identify the present defendant with the *E. G.*Kimmel mentioned in spch original action as defendant therein, *116or with the person served with the summons or complaint therein. The defendant denies in her answer in this action upon the judgment, and denied in her testimony, any such •service, and, as well as her husband, testified to facts showing its exceeding improbability. Ho evidence was offered to contradict such testimony, except a promise by the defendant to pay such judgment, which does not conflict with it. Such promise, if supported by a sufficient consideration, might warrant a new action, but would not make a judgment without . jurisdiction regular, or prove that any paper had been served on the defendant. She may have made the note, and thought herself honorably bound to pay the *judgment;*but the promise was no admission of a legal liability, or regularity in the judgment. In the absence of any conflict of evidence, the defendant’s testimony established that she was not served, which either made the judgment void for want of jurisdiction, at least as regarded her, or disproved her identity with the person made defendant by service. *(Starbuck*v. *Murray,*5 *Wend.*148. *Noyes*v. *Butler,*6 *Barb.*613. *Dobson*v. *Pearce,*2 *Kern.*156, 164.) For this reason also the judgment was erroneous.

Upon the foregoing principles, the testimony to show the consideration of the original note, was admissible to show that the defendant’s separate estate was not liable; and was improperly excluded.

The judgment must be reversed, the order of reference vacated, unless the parties consent to its standing, and a new trial had, with costs to abide the event.

White, J.

A judgment was recovered in August, 1849, by Joshua P. Humphreys and Edward B. Humphreys, against E. 0. Kimmel and Alexander F. Kimmel, upon a promissory note, made by E. 0. Kimmel to the order of and indorsed by Alexander F. Kimmel. The judgment was recovered by default *;*and the judgment roll and proceedings are in the form usual upon judgments by default in such cases, except that the affidavit of service of the summons and complaint on the defendants, is not made by the sheriff, and it does not state *117that the person making the service knew either of the persons served, to be either of the persons mentioned or described in the summons as a defendant therein ; nor does it state that a copy of the summons or complaint was left with either of them.

This judgment came by assignment to Baldwin, the above named plaintiff, who in 1862 brought the present action upon it, against the above named defendants, Elizabeth 0. Kimmel and Alexander F. Kimmel, alleging in the complaint, the recovery of the above mentioned judgment in 1849, that the defendant, Elizabeth 0. Kimmel, sued in this action, is the same person against whom the judgment was revovered in 1849, by- the name of E. 0. Kimmel, that said judgment of 1849 remains in full force and effect, and was duly assigned to the present plaintiff, Baldwin, by whom it is now owned ; and thereupon judgment is demanded in the complaint against the defendants for the full amount of the original judgment with interest.

The defendant. Elizabeth 0. Kimmel was alone served with the summons and complaint in the present action, and alone answered, denying in her answer every allegation of the complaint ; and further denying that she had been served with the summons and complaint in the action of 1849 ; and also controverting the allegation that she was the person intended to be described as defendant by the name of E. 0. Kimmel in that action; and alleging that at the time of the recovery of the judgment in 1849, she was and is yet, a married woman, the wife of said Alexander F. Kimmel; and further, denying any indebtedness to the Humphreys upon which her separate estate could be charged.

The cause was referred, and upon the trial before the referee, the judgment roll of the judgment 'of 1849 was read in evidence, under exceptions taken by the defendant; said exceptions alleging that the judgment was void; first, because it is a judgment *in personam*against a married woman, upon a promissory note made by her during coverture; and secondly, because the affidavit of service of the Summons and complaint *118is insufficient. Proof of the assignment of the judgment to the present plaintiff was also made.

The defendant Elizabeth 0. Kimmel testified on her own behalf that she was the wife of the defendant, Alexander F. Kimmel, and was so at the time of the making of the note upon which the judgment of 1848 was obtained; that she was never served with the summons and complaint in the action of 1849, and could not have been served at the time stated in the affidavit of service annexed to the roll, namely, June 18, 1849, because at that time and for many days previously, and for many weeks afterwards, she was very sick in bed with cholera, confined to her room from the second week in June until September, 1849, so sick that none but her attendants were permitted to see her, being a part of the time out of her mind; and the first knowledge that she had of the judgment of 1849, was when the summons.and complaint in the present action were served upon her.

Her husband, the defendant, Alexander F. Kimmel, was also sworn, and corroborated her testimony. *%*

Edward B. Humphreys was sworn for the plaintiff, and stated, *“*that he had at least a dozen conversations with the defendant since the judgment in question, in which he referred to the judgment, and she said she would pay it when she was able.”

The defendant, Mrs. Kimmel, being recalled, stated positively, that she never had the conversations with Humphreys, which he swore to; that he had not been inside her house and she had not seen him since 1848.

The defendants’ counsel offered to show that the note on which the judgment of 1849 was recovered, was given for a debt due from Alexander F. Kimmel to the Humphreys, and not for any indebtedness of the defendant Elizabeth, nor for her benefit, nor for the benefit or upon the credit of her separate estate. The plaintiff’s counsel objecting to the testimony, it was excluded by the referee, to which decision the defendants counsel excepted.

Upon the foregoing testimony the referee found the exist*119ence of the judgment of 1849 unreversed, and in full force and effect, and that the whole amount, with interest, is due and payable; that the plaintiff is entitled to recover the same; that the judgment was obtained upon a promissory note made by the defendant, Elizabeth, and indorsed by her husband, the defendants then being husband and wife; that neither of them made any defense to the action on the note; and that the defense of her then' coverture can not be made available by the defendant, Elizabeth, in the present action.

The defendant duly excepted to these findings.

The judgment entered upon the findings concludes by adjudging, “that tlie said judgment be enforced and collected according to law, out of the separate estate or property of the said defendant, Elizabeth 0. Kimmel.” ■

The defendant appeals from the judgment thus rendered against her, and (so far as I can gather from the printed case and points) alleges, as grounds for reversal, in substance:

1st. That the note upon which the judgment of 1849 was recovered was void, by reason of the maker’s then coverture, and that the plea of coverture is as available to the defendant in this action, which is brought upon the judgment recovered upon the note, as it would have been in the original action brought upon the note itself, if it had been then pleaded.

2d. That the present action being brought against a married woman, upon a judgment *in, personam*recovered against her, the complaint should allege" facts showing affirmatively that the debt for which the note was given was an indebtedness of the defendant, incurred for the benefit or upon the credit of her separate estate; and that the complaint not containing such allegations, it does not state facts sufficient to constitute a cause of action, and the plaintiff must therefore fail.

3d. That the judgment of 1849 was void as to the defendant, Elizabeth 0. Kimmel, because the court never had jurisdiction of her; no summons having been served upon her, and she never having appeared in the action.

*120Upon neither the first nor second point above stated, should the judgment in this case be reversed, in my opinion.

If the defendant omitted to plead her coverture when she might have done so, and, instead of so pleading, she has suffered a judgment to be taken against her by default, the record of which presents on its face no error of fact or of law, (for nothing of her coverture appears upon the judgment roll,) she can not interpose that plea in an action brought against her upon the judgment. Her only remedy would be to apply by action or motion to open the original judgment and let her in to defend that suit.

And as to the allegations proper in a complaint in an action upon such a judgment as that recovered in 1849 ; all that it is necessary for the plaintiff to allege in the complaint, is the fact of the present existence of the judgment unreversed and unsatisfied. It is not necessary to go behind it, and make allegations respecting pre-existing matters, which that judgment must be presumed to have disposed of, and respecting which it is, so long as it stands, a complete and conclusive finality.

A question respecting the connection or relation of the original judgment to the defendant’s separate property, no more arises in such a case, than it would in a case in which a married woman should be sued upon a promissory note made by her before marriage, while a *feme*sole; and need no more be stated or referred to in the complaint in one case than in the other.

The direction in the judgment in this action, *H*that it be collected and enforced out of the defendant’s separate estate,” is not otherwise objectionable than that it fails to adopt, with sufficient.literal accuracy, what is now the authorized form of a judgment against a married woman, in every case and for any cause, *(Sess. Laws of*1861, *p.*849,) the object of this statute being, as I suppose, merely to give more full expression or effect to the new principle, that the wife’s debts can be made chargeable only upon her own separate estate, and the husband’s debts only upon his separate property.

*121But on the third of the above points I think that the testimony, as it is given in the case, preponderates irresistibly in favor of. the conclusion that the defendant was not served with a summons or complaint in the original action. All the proceedings in that action should, therefore be regarded, as to her *coram non judice,*and the judgment as to her absolutely void.

Upon that ground, therefore, I concur in the conclusion, that the judgment in the present action must be reversed, and a new trial ordered, with costs to abide the event; the order of reference to be vacated unless the parties stipulate that it shall remain.

Judgment reversed.