OpiíuojSt,
Mr.. Justice Clark :This suit was brought September 2, 1879, by Galloway & Meek against E. S. Gudykunst and Margaret his wife, jointly, upon an itemized statement of account for goods sold and delivered amounting to $664. The copy of account filed ■ shows the charges to have been made against the husband and wife jointly, and the declaration, which was upon the common counts only, was for a joint debt and contained no averments' charging the separate estate of the wife. Margaret Gudykunst filed an affidavit of defence alleging coverture at the time the debt was created, and that the debt was not contracted by her, .nor by any one for her. Thereupon on December 10, 1879, judgment was entered against the defendant, E. S. Gudykunst, for want of an affidavit of defence, for $658.15; on January 29, 1880, however, the judgment was opened and the defendant let into a defence. Whether the judgment was opened on application of the plaintiff, or of the defendant, or by the court upon its own motion, does not appear. The record remained in this condition for six years and more, when on August 9, 1886, without notice to the defendants, or either of them, the record was amended by striking out the name of Margaret Gudykunst as a party defendant, *127and judgment was again entered against E. S. Gudykunst, the remaining defendant, for want of an affidavit of defence, in the sum of 8901.76 ; this is the error complained of.
There is no dispute upon the facts; they all appear upon the face of the record. The only question is, whether or not the court, under the circumstances stated, had any authority to enter the judgment for want of an affidavit of defence; we think not. By the pleadings originally filed, E. S. Gudykunst was charged jointly with his wife ; in this form of proceeding he made no defence, relying perhaps upon the joinder of his wife and the force of her affidavit, as a defence against the plaintiff’s recovering against him. Whether he knew of the judgment of December 10, 1879, does not appear and perhaps that is not material. But it is plain that when the pleadings were so amended as to make him the only defendant, he had a right to notice of the fact before an affidavit of defence could be required of him, if an affidavit was required of him at all. It is admitted that under the pleadings, as originally filed, coverture being admitted therein, the joint action against the husband and wife could not be sustained. When the time arrived for judgment, under the rule of court, the plaintiff therefore was not entitled to judgment; the judgment which was then erroneously entered was in a few days thereafter opened, and he could not put matters in a better position, under the rule, by any subsequent amendment, excepting, perhaps, upon thirty days’ notice to the defendant or his attorney, and then judgment could only have been entered upon motion in open court. The defendant had a right to content himself with the condition of the record at the time fixed by the rule, until further notice. The judgment was without doubt erroneously entered, and the same is therefore
Reversed, and a procedendo awarded.