and therefore no evidence of title could be introduced on the trial. Being in default, the plaintiff cannot be permitted to make this objection.

Affirmed.

H. MATTER vs. J. H. PHILLIPS and others.

Filed October 29, 1879.

Where a judgment is taken in the name of one who is merely a nominal party thereto, a payment by a garnishee of the debtor to the real party in interest will operate to discharge the judgment. Petition was filed in April term, and defendant required to show cause at that term why an injunction should not be granted. Demurrer being overruled and injunction allowed, held that defendant had until November term before default could be entered against him.—[ED.

Appeal from Polk district court.

In chancery. An injunction was allowed upon plaintiff's petition, and from the order defendants appeal. The plaintiff moved for a default against defendants. His motion was overruled, and from this decision he appeals.

W. T. Love, for plaintiff.

L. W. Goode, for defendants.

BECK, C. J. 1. The petition alleges that plaintiff executed his promissory note to one Wilson, who delivered it to J. H. Phillips to be sued upon for the use and benefit of Wilson, and for that purpose indorsed the note to Phillips; that Phillips recovered judgment in his own name, but had no interest whatever in the action; that plaintiff was served with process of garnishment as the debtor of Wilson, and answering admitted his indebtedness and paid the amount due, and that Phillips, well knowing all the facts alleged, has caused an execution to be issued and levied upon the property of plaintiff. Upon the alleged facts an injunction is prayed for, to restrain Phillips from collecting the judgment, and asking that the officer holding the execution, who is made a defendant, be restrained from further proceedings to collect the execution. The petition was filed during the term of court, and defendants were required to appear and show cause why the injunction should not be allowed. They appeared and demurred to plaintiff's petition, and thereupon the question of its sufficiency to authorize the allowance of the injunction was brought before the court. The demurrer was overruled and the injunction was allowed. This action of the court presents the first question arising in the case.

2. The petition alleges that Phillips, the nominal plaintiff in the judgment, had no interest whatever in the action, which v3—4 (no. i)

(49)

was prosecuted in his name for the benefit of Wilson. The demurrer admits this allegation. The question presented is this: Was plaintiff authorized to make payment to the real party in interest, or would he be bound by garnishee process against him as the debtor of the real party holding the judgment? Upon this question there can be no doubt. Plaintiff was authorized to make payment to Wilson, as the person really holding the judgment, and such payment would precluded the nominal plaintiff in the judgment from enforcing it. See Freeman on Judgments, § 462, and authorities cited. The payment by plaintiff may be considered as voluntary; yet as, under the admissions of the pleadings, it was made to the real party in interest, he is discharged thereby.

The plaintiff, after the ruling of the court upon the demurrer and the allowance of the injunction, moved that a default be entered for the reason that defendant failed to answer the petition. The motion was overruled, and from this decision plaintiff appeals. The court properly refused to enter the default. The petition was filed during the April term, the return term being in November. The court required the defendant to appear and show cause why the injunction should not be allowed. In response to this rule defendants appeared and presented their objections to the petition and relief claimed therein by demurrer. After the allowance of the injunction the defendants no further appeared in the case. It is very plain that defendants were not required to answer at the April term. Their appearance was special, in response to the rule of the court, and their demurrer was filed for the special purpose of raising the question of the sufficiency of the petition to authorize the allowance of an injunction thereon. The defendants had until the proper day of the following term to further answer the petition. The case presents no other questions. As we discover no error in the decisions of the court below, the judgment is affirmed as to the appeals of both parties.

Affirmed.

FARRAR & WHEELER, appellants, vs. C. EMERY, appellee. Filed October 27, 1879.

For a debt incurred for family expenses the wife is personally liable as well as the husband, and suit therefor may be brought against her alone. -[ED.

Appeal from Dallas circuit court.

Action at law. Judgment against plaintiffs upon a demur

rer to their petition. They now appeal to this court. The facts of the case are fully stated in the opinion.

White & Wooden, for appellant.

No appearance for appellee.

BECK, C. J. The petition alleges that James Emery executed a promissory note to plaintiffs, which is set out in the petition; that at the time of the execution of the note defendant, C. Emery, was the wife of James Emery, who has since died; that the note was given for a sewing machine purchased by the husband for the use of the family, and was so used, and that the purchase of the machine was a proper family expense. The petition asks a personal judgment against the wife, who is the sole defendant. The defendant demurred to the petition on the ground that defendant was not personally liable, and no personal judgment can be rendered against her upon the claim set out in the petition. The demurrer was sustained.

The demurrer admits that the purchase of the sewing machine was a family expense. The sole question presented in the case involves the personal liability of defendant for the debt, and the right of plaintiffs to recover against her in this action. The precise question has been determined by us. See Smedley v. Felt, 41 Iowa, 588; S. C. 43 Iowa, 607. We held in these cases that for a debt incurred for family expenses the wife was personally liable, and may be sued thereon alone. This must be regarded as the settled doctrine of the court.

The demurrer was erroneously sustained. The judgment is, therefore, reversed.

LEOPOLD LOWENSTEIN, Appellee, vs. H. MONROE, and J. P. FOSTER, Intervenor, Appellant.

Filed October 27, 1879.

A defective verification of a petition for attachment is amendable.-ED Appeal from Polk circuit court.

A petition was filed, asking a writ of attachment. The verification made by an attorney was as follows: "The facts set forth in the foregoing petition as grounds for this attachment, and the same are within my own knowledge, and the same on trial, as I verily believe." The intervenor, claiming the property attached by virtue of a general assignment made to him by the defendant, filed a motion to quash the attachment

because the petition was not properly and sufficiently verified. Before this motion was submitted to the court the plaintiff, in pursuance of leave of the court, filed an amended petition, which among other things stated that "the causes of attachment alleged in the original petition were true at the commencement of this action, and the filing of the original petition and the issuing of the writ of attachment." This petition was verified by the plaintiff. The intervenor filed another motion to quash the attachment, on various grounds, which was overruled, and he appeals.

A. B. & J. C. Cummins, for appellant.

Brown & Dudley, for appellee.

SEEVERS, J. It is not claimed the petition verified by the plaintiff was not sufficiently verified; but the point made is that as the original petition was verified only as to the sufficiency of the causes of attachment, the defect was one which could not be cured by amendment. We think otherwise. The defect, under section 3021 of the Code, could be well cured, and it was properly done by the verified, amended petition. Murdough v. McPherrin, Iowa,

Affirmed.

Appellees.

Filed October 25, 1879.

Where, in a proceeding to restrain action upon a special execution issued on a judgment, a party signed the injunction bond as surety, held, that he was not thereby precluded from afterwards purchasing and enforcing such judgment the same as any other stranger; nor was his right so to do affected by the fact that he took indemnity for his liability upon such injunction bond.

Where chattels were transferred as security, held, that the surplus remaining after satisfying the claim, to secure which they were transferred, was subject to garnishment. To authorize such garnishment it was not necessary that it should appear that the debtor had no other property subject to attachment, but only that one of the statutory grounds for garnishment existed.-[ED.

Appeal from Polk circuit court.

The plaintiff commenced this action against the defendants A. R. Wilson and E. P. Wilson upon a promissory note for the sum of $2,900, dated March 15, 1878, and for the foreclosure of a mortgage of the same date, executed by A. R. and E. P. Wilson to secure said note. The petition alleges that Walter G. Reed has, or claims to have, some interest or lien

upon the real estate described in the mortgage, and avers that such interest or lien is inferior to the lien of plaintiff.

The defendant Walter G. Reed appeared and answered, in substance alleging that on the seventh day of September, 1877, J. K. and W. H. Gilchrist recovered a judgment in the Polk circuit court against the defendant E. P. Wilson for the sum of $387.09 and costs, and that, by the decree of said court the said J. K. and W. H. Gilchrist had a lien for the amount of said judgment upon the property described in the mortgage sued upon; that said judgment remains in full force, and is entirely unpaid; that on the sixteenth day of September, 1878, the said J. K. and W. H. Gilchrist sold, assigned and transferred in writing the said judgment to this defendant; that the lien of said judgment is prior and superior to the lien of plaintiff on said land; that on the fourth day of May, 1878, and prior to the purchase of the judgment by this defendant, he was induced by the defendants E. P. and A. R. Wilson to sign an injunction bond in the sum of $900, in a suit instituted by the defendant E. P. Wilson against George Lendrum, sheriff, and J. K. and W. H. Gilchrist, to enjoin the said sheriff from the sale of property under a special execution issued on the judgment herein before referred to, and by reason of said bond, and the injunction which issued, the said sheriff was enjoined from making said sale as directed by said special execution, which injunction, at the August term, 1878, of said court was dissolved at the plaintiff's costs; that to indemnify this defendant against loss and damage on account of said injunction bond the defendant A. R. Wilson executed to this defendant a bill of sale on one white mare known as Lady Elgin, and one roan stallion known as Henry Clay; that after the execution of said bill of sale A. R. Wilson absconded, and this defendant seized the property described in said bill of sale, and has held the same hitherto; that soon after this defendant acquired the possession of said personal property. C. H. McCormick & Bro. instituted in the Polk circuit court, proceedings by attachment against the defendant A. R. Wilson, and under such attachment garnished this defendant, and are now insisting that this defendant account to the said C. H. McCormick & Bro. for said personal property, after this defendant's reasonable costs, charges and damages are paid; that the plaintiff herein is insisting that this defendant apply the proceeds of said property on said judgment and lien against said real estate; that said bill of sale contains no