
    Elliott v. Lawhead.
    
      Married women — Separate estate — May charge by parot, contract — Jurisdiction— When equity exclusive — Rule—Remedy at law must be exhausted— Application — Prior action at law — - Whether bar to proceeding in equity— Voluntary appearance to action by motion — Revised Statutes, sections 4996, 5319, and 3108 to 3112.
    1. A contract by which a married woman charges her separate estate, in equity, with the payment of a debt, need not be in writing.
    2. An action founded on sucha contract, where a personal judgment against a married woman is not authorized, is of an equitable nature, of which a court of equity alone has jurisdiction.
    3. The rule that a creditor must exhaust his remedy at law before seeking equitable relief, does not apply to an action to charge the separate estate of a married woman for the payment of a claim, where the statute gives no remedy at law.
    4. A prior action to recover a money judgment, in which it is sought to reach the same separate property by attachment, in which the plaintiff fails, is no bar to a suit in equity, to charge such separate property, with the payment of the same claim.
    5. The appearance of defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action, but where such motion also asks to have the cause dismissed on the ground that the court has no jurisdiction over the subject-matter of the action, which motion is not well founded, it is a. voluntary appearance, which is equivalent to service of summons. Handy v. Ins. Co., 37 Ohio St. 366, approved.
    6. What effect, if any, the amendments to sections 4996, 5319 and 3108 to 3112, inclusive, of the Revised Statutes (81 Ohio L. 65, 209) have upon the state of the law, as it existed when this action accrued and was decided, is not involved in this case.
    Error to the District Court of Licking county.
    September 24, 1878, Lawhead commenced an action in the court of common pleas against Charlotte Elliot, a married woman, and Cyrus S. Gilbert, stating that there was due to him from her the sum of seventy-five dollars for services as her attorney, rendered by him at her request about her separate estate and property; that said employment for such services was made by her in reference to and upon the faith and credit of her separate estate, which she thereby charged.
    It is alleged that her co-defendant, Cyrus S. Gilbert, has in his possession moneys of the said Charlotte, as her separate estate, which in equity ought to be subjected to the payment of plaintiffs demand.
    The prayer is to ascertain the amount due from said Charlotte, and if necessary he may have judgment therefor, and to subject the money in Gilbert’s hands to the payment thereof.
    Gilbert made no defense. Mrs. Elliott filed the following motion:
    “ Charlotte Elliott, the defendant above named, by her attorneys, Charles Follett & Son, now comes for the purpose of this motion and for no other purpose, and moves the court to strike the above named case from the docket of said court, and the petition from the files, for the want of legal and proper service, and because the said court has no jurisdiction of the subject-matter of said action or of debt, and for the same reason that all proceedings herein by said plaintiff against her be dismissed.’’
    
      This motion was overruled, to which defendant excepted. Thereupon she filed the following demurrer:
    “The defendant, Charlotte Elliott, still protesting by her attorneys here against the jurisdiction of said court, or any intention to, in any manner enter her appearance in this action, and saving and reserving to herself, now and at all times hereafter, all manner of advantage and benefit of exception and otherwise to the proceedings herein. She by her attorneys demurs to the petition of said plaintiff for the following reasons: 1. Because the said court has no jurisdiction of the person of said defendant, Charlotte Elliott; 2. Because the said court has no jurisdiction of the subject of said action; 3. That there is a misjoinder of parties defendants and causes of action ; 4. That said action is not upon her written obligation, or any express promise or agreement; 5. That said petition does not state facts sufficient to constitute a cause of action against said defendant ; 6. Other causes that may be named are apparent in the ease.”
    This demurrer was also overruled, and the defendant answered, still persisting in her protest and objection that the court had no legal or equitable jurisdiction over the subjéet-matter, or of her person. Her answer is:
    1. An admission that Gilbert had in his hands money belonging to her, and that she is a married -woman, and a denial of each and every other allegation of the petition.
    2. That as a married woman she is entitled to the benefit of exemptions to heads of families in the state of Ohio, and that her separate property, including moneys in the hands of said Gilbert, do not exceed in value the sum of $500, and that she is legally entitled to hold the same exempt from being applied to the satisfaction of plaintiff’s claim, but as she was a non-resident of the state this defense is not relied on.
    3. That on the 13th of July, preceding this action, 'plaintiff brought an action against her, before a justice of the peace, to recover the same claim, and on the 17th of the same month dismissed said action.
    
      4. That on the 17th of July aforesaid, he brought another action against her and her husband, John Elliott, to recover against her on the same claim, which on motion of this defendant and upon full hearing was dismissed.
    5. That said Lawhead, at the time of the commencement of this action, had no lien, claim, right, or title to the money in the hands of said Gilbert, and that she, since this action is commenced, assigned and transferred to Charles Eollett, in payment of a claim due to him, the moneys in Gilbert’s hands.
    A reply was filed putting in issue the allegations of said defenses. In each of these several defenses the same objection is made and reserved as to the.jurisdiction of thé court, as is found in the motion and demurrer. On trial ■the court found there was due the plaintiff the sum of $50 and interest, and ordered Gilbert to pay the money in his hands into court, to be applied to the payment of plaintiff, and the balance, if any, to be paid to Charles Follett, who had become a defendant, and asserted his right to the money. Thereupon defendants gave notice of appeal, and the court fixed the amount of the undertaking therefor.
    The case was again tried iii the district court and resulted in a finding in favor of the plaintiff for the sum of $75, and a judgment that said services were rendered by the plaintiff for Mrs. Elliott, “ upon the full faith and credit of her separate estate, which she intended to charge for the reasonable value of said services,” and ordered that Gilbert pay the money into court to be applied to the payment of costs and the satisfaction of plaintiff’s claim.
    Up to this time no service of summons nor service by publication was made a matter of record. In fact, service by summons was not attempted, because Mrs. Elliott was a non-resident of the state of Ohio.
    It appears, however, that the proper steps were taken at the commencement of the action, by filing an affidavit for that purpose, and that due notice was published for the proper time before the motion to dismiss was filed. But no proof was made of such publication until after final judgment in the district court.
    There is a bill of exceptions taken to the judgment of the district court, which sets out the testimony in the case. The errors assigned in this court are :
    1. In overruling the motion to dismiss plaintiff's action.
    2. lu'overruling her demurrer to the petition.
    3. In finding the equity of the case with the plaintiff below.
    
      Charles Follett Son, for plaintiff in error.
    
      Charles H. Kibler, for defendant in error.
   Johnson, J.

1. The contract alleged in the petition and found by the district court to exist, was purely of equitable cognizance.

It is the contract of a married woman for services rendered to her in the management of her separate estate, by which, as the court finds, she charged that estate with the payment of reasonable compensation for the services rendered.

It is not alleged that this contract was in writing, and the proof shows that it was not.

A married woman can charge her seperate estate by parol contract.

The claim, therefore, that such charge should be evidenced by written instrument is not well founded.

2. The claim for services were not of that nature or character as would, under the law that then existed, warrant a personal judgment against a married woman, nor an execution against her separate property. No action at law, therefore, would lie against her for such services. The rule which requires a creditor to exhaust his remedy at law before seeking relief in equity has no application.

The only remedy the plaintiff had was in equity. Hence the claim that plaintiff below should have first obtained a judgment and exhausted her property liable to execution is not well made.

Neither the motion, to dismiss, because the court had no jurisdiction over the subject matter, nor the demurrer based upon the same ground, should have been sustained.

The case made was clearly within the equitable jurisdiction of the court of common pleas.

3. As to the attachment proceedings and their effect, as a bar to this action.

The proof shows that on the 13th of July, 1878, the plaintiff below commenced an action before a justice of the peace against Charlotte Elliott, alone, on the same claim to recover a money judgment, which was dismissed by the plaintiff', without attempt to get service. It further appears that on the 17th of the same month he commenced another action before the same justice against Charlotte Elliott and John Elliott, her husband, and caused an attachment to issue against them as non-residents of the state of Ohio, with notice to sundry persons to appear and answer touching the property of the wife in their possession liable to attachment.

McCullough, one of the garnishees, answered, showing that he had seventy-six dollars in his hands belonging to said Charlotte. This amount Ne paid into court.

On motion of said Charlotte the attachment was discharged, leaving the money in the hands of the justice, one Cyrus S. Gilbert, who is co-defendant in this action below. The next day the case was dismissed for want of prosecution.

The dismissal of these cases in attachment constituted no bar to the present suit in equity.

The plaintiff below could not proceed by attachment before a justice against a married woman in a case where no personal judgment for money could be rendered against her. Allison v. Porter, 29 Ohio St. 136.

4. As to the service by publication, or the jurisdiction of the court over the person of plaintiff in error.

The overruling of the motion to dismiss is assigned as error. This motion assigns two reasons why it should be granted:

First. "Want of legal and proper service; and, second, because the court had no jurisdiction of the subject-matter. This last ground was in the nature of a demurrer to the jurisdiction of the court, and was in itself an appearance in the case.

It amounted to a waiver of service, and gave the court jurisdiction over the person of defendant.

It is true the defendant “ comes for the purpose of filing this motion and for no other purpose,” and had the motion been confined to the want of proper service it would not have operated as an appearance. It was not so limited, but embraced an additional reason, to wit, the right of the court to hear and determine the subject-matter. The rule is that where a defendant appears solely for the-purpose of objecting to the jurisdiction of the court over the person, such motion is not a voluntary appearance of defendant which is equivalent to service.

Where, however, the motion involves the merits of the case made in the petition the rule is otherwise; Sandy v. Insurance Co., 37 Ohio St. 366; Maholm v. Marshall, 29 Ohio St. 611.

Here one of the grounds of objection, as raised first by the motion and afterward by the demurrer, was that defendant was not liable in that court; or, in other words, the court had no jurisdiction over her as a married woman to grant the relief prayed for. This was a waiver of service, or a voluntary appearance of defendant equivalent to service. We need not, therefore, determine whether it "was a case in which service by publication was authorized; nor whether such service was properly made; nor whether proof thereof could be made after final judgment.

As the court had jurisdiction over the subject-matter, and as the defendant had voluntarily appeared, these questions become immaterial.

The foregoing decision is made with reference to the state of the law relating to married women, as it existed when this ease was pending. What, if any effect, the amendments to sections 4996 and 5319 of the Revised Statutes, 81 Ohio L. 65, or of sections 3108, 3109, 3110, 3111, and. 3112 of the Revised Statutes, 81 Ohio L. 209, have, we do not consider.  