Bostic v. Love

Citations

• 16 Cal. 69
• 1860 Cal. LEXIS 164

Syllabus

<p>Mbs. L., defendant, when a femme sole, contracted a debt, upon which judgment by-default was recovered against her, and an appeal taken in her name to the Supreme Court, where the judgment was affirmed. Subsequently, judgment was obtained against plaintiff here, as surety on her appeal bond. This judgment he paid, by giving his note in full satisfaction. He now sues Mrs. L. for the sum so paid: Held, that she cannot defend on the ground that the paper on which the first suit against her was brought expressed no consideration, and that the complaint therein averred none, and that hence no demand is shown against her—the judgment of the Supreme Court, being conclusive so long as it stands, cannot be attacked collaterally on the ground that the parties to it did not prosecute the appeal, but must be set aside, if at all, by a direct proceeding impeaching it for fraud.</p> <p>Held, further, that the complaint need not set out any separate property of the defendant, because the wife was liable in personam before coverture, and under our statute, continues so after marriage.</p> <p>The equity rule requiring two witnesses to controvert an answer under oath, does not prevail in this State. The answer is only a pleading, and is not evidence for defendant.</p> <p>Cordier v. Schloss (12 Cal. 143) cited.</p> <p>Where an appeal is taken by a party, and as a condition to give it effect, a bond or undertaking, with or by sureties, is annexed—the undertaking being executed for the benefit of the appellant—the law presumes it was executed at his request, and probably no proof of that fact is requisite in a suit by the surety against the appellant, for money paid on account of the suretyship. At all events, very slight proof of such request would be required.</p>