J.W. Cupples and L.J. Mitchell, doing business under the firm name of Cupples Mercantile Company, sued, in the probate court, A.P. Briggs and Gertrude M. Briggs, husband and wife, for a grocery bill. The verdict of the jury was as follows: "The jury in the above entitled case find for the plaintiff and against the defendant, Gertrude M. Briggs, and assess their damage in the sum of $190.25 against community property" — and the judgment thus: "It is therefore ordered and decreed by the court that the plaintiffs, J.W. Cupples and Luther Mitchell, doing business under the Firm name of Cupples Mercantile Company, do have and recover of and from the defendant, Gertrude M. Briggs, judgment in the sum of $190.25, together with all costs of suit amounting to $32.15; total judgment assessed against community property."
Pursuant to the judgment appellant Mason, sheriff, levied an execution on an automobile, which Gertrude M. Briggs, respondent, claims was her sole and separate property. *Page 286
This action was commenced by respondent to recover possession of the automobile on the theory that the judgment below was not against her personally and that the automobile was her sole and separate property. The court instructed the jury such judgment was not a personal one against Mrs. Briggs' separate property and the jury found that the automobile was her separate property and the court entered judgment in favor of respondent. The sheriff appeals.
Appellant urges that the clause "total judgment assessed against community property" was surplusage and therefore of no effect.
The complaint in the original proceeding contained the following:
"That prior to receiving said groceries, said defendant, Mrs. Gertrude M. Briggs specially promised and agreed to pay for said groceries and that same were sold to her upon her express promise to pay for the same, and that said groceries were sold for the use and benefit of Gertrude M. Briggs together with the promise and agreement of said defendant, A.P. Briggs, to guarantee said bill."
Fairly interpreted this stated a cause of action against Mrs. Briggs in her individual, sole and separate capacity and not an action as contemplated in Hall v. Johns, 17 Idaho 224,105 P. 71, and Edminston v. Smith, 13 Idaho 645, 121 Am. St. 294, 92 P. 842, 14 L.R.A., N.S., 871.
Mrs. Briggs answered and filed her separate answer and cross-complaint denying that she was obligated in her sole, separate and individual capacity but affirmatively alleged that, in effect, it was a community debt contracted by A.P. Briggs. Since it was not an action as contemplated by Hall v.Johns and Edminston v. Smith, supra, and A.P. Briggs was not served, there could be no valid verdict or judgment against the community.
The first portion of the judgment entered, if taken alone, was a personal judgment against Gertrude M. Briggs, the wife. The words "assessed against community property" *Page 287 import a contradictory meaning, — "community property" means property belonging to the husband and wife acquired during marriage and specifically excludes the separate property of either. (C. S., secs. 4656-4660.)
The respondent by her affirmative defense raised the issue of the community being bound. As pointed out above, no verdict or judgment could have been rendered against the community. We cannot presume or suppose the jury intended to do a vain thing; therefore, the only valid judgment that could have been rendered was rendered against respondent in her personal capacity. Conceding that there is doubt whether the jury would have so found unless they also believed that the judgment would have to be paid out of the community property, the verdict and judgment are to be given effect, if possible. (38 Cyc. 1901;Morrow v. Bonebrake, 84 Kan. 724, 115 P. 585, 34 L.R.A., N. S., 1147; Koskela v. Albion Lumber Co., 25 Cal. App. 12,142 P. 851; City of Portland v. Blue, 87 Or. 271, 170 P. 715.) No appeal was taken by respondent and the rights of the parties so far as determined by such verdict and judgment thereby became fixed. The court therefore improperly instructed the jury that this judgment was not against the respondent personally.
Since the judgment was against respondent in her sole and separate capacity and she alleges she was the sole owner of the car in question, she was entitled to no relief herein.
The judgment is therefore reversed and remanded, with instructions to enter judgment for appellant.
Costs awarded to appellant.
Wm. E. Lee, C.J., and Taylor and T. Bailey Lee, JJ., concur. *Page 288