Plaintiff bank brought this action in circuit court against the administrator of the estate of Hilda Anderson, deceased, to recover on four notes signed only by her husband August A. Anderson. It appears from plaintiff's Second Amended and Substituted Complaint that loans were made to August A. Anderson for the purpose of providing family necessaries and the funds from these loans were deposited in a joint checking account in the names of August A. Anderson and his wife; that withdrawals were made from the checking account in payment of these family necessaries from time to time. It is further alleged the notes given by the husband were executed in Iowa, were payable in Iowa and the Andersons lived and maintained their home in Iowa during that time and up to the time of their deaths; that the wife knew the loans were being made and the funds deposited in the joint checking account and later used for payment of the family necessaries and knew her husband had executed the notes; that by Section 597.14 of the 1962 Code of Iowa, as construed by the Supreme Court of Iowa, the
Demurrers having been abolished, a motion to dismiss now provides an expeditious remedy to test the legal sufficiency of a pleading and deals with questions of law arising thereon. SDC 1960 Supp. 33.1002 and Hauck v. Bull, 79 S.D. 242, 110 N.W.2d 506. For the purpose of a motion to dismiss, like that of a demurrer, the court must treat as true all facts as properly pleaded in the complaint. Hirning v. Forsberg, 49 S.D. 46, 206 N.W. 471. It does not admit conclusions of the pleader either of fact or law. Section 597.14 of the 1962 Code of Iowa, which is quoted in plaintiff's complaint, reads:
In substance it has been in Iowa statutes since 1851, except earlier statutes did not qualify the family expense to be reasonable and necessary as does present § 597.14. See Code, § 2214 quoted in Davis v. Ritchey, 55 Iowa 719, 8 N.W. 669. Plaintiff states the liability of a husband and wife under the statute is statutory and not contractual. If that were so plaintiff is not entitled to recover as the action here is not for the reasonable and necessary expenses of the family but on certain specified notes signed only by the husband.
Plaintiff contends the notes, being made in Iowa by an Iowa resident and to be performed in Iowa, are to be construed according to the laws of Iowa as to the construction, validity and enforcement as indicated in First National Bank of Sibley, Iowa v. Doeden, 21 S.D. 400, 113 N.W. 81. Defendant makes no argument as to this rule and accepts the application of it here. Applying Iowa law plaintiff claims a wife may be held liable for the money borrowed by her husband when it was borrowed for the purpose of using it to pay family expenses and was so used. The Supreme Court of Iowa was presented with the precise issue in Davis v. Ritchey, supra, where it wrote:
Plaintiff admits the Ritchey decision has not been expressly overruled, but argues other opinions have in some respects modified it. These cases are distinguishable. The court in Sherman v. King, 51 Iowa 182, 1 N.W. 441, denied recovery from a
Thomas v. State, 241 Iowa 1072, 44 N.W.2d 410, held a wife liable for old age assistance furnished her husband under a different statute (§ 249.20 of Chapter 249, Code of 1946, I.C.A.) making her liable therefor, Section 597.14 not being mentioned in the opinion. Iowa Methodist Hospital v. Utterback, 232 Iowa 739, 6 N.W.2d 284, only held hospital services rendered a husband were "family expenses" for which a wife was liable even though the husband had deserted her. For the reasons stated in Davis v. Ritchey, Hilda Anderson was not liable on the notes nor for money borrowed by her husband and later used for family expenses. That she knew the money was borrowed and then used for that purpose adds nothing to plaintiff's claim. In Ritchey it was alleged she was present when her husband, who was unable to work, solicited the loan of money, remained silent and did not object to it or her liability therefor as his wife and the money borrowed was used for the purchase of medicines, provisions and necessaries of the family. That August A. Anderson made representations to the bank that he was owner of certain land to which title was vested in him and his wife as joint tenants did not create liability of the wife on the notes or an estoppel to deny such liability when none existed under Iowa law.
We have, however, dealt with the issues on the appeal as the parties have presented them and conclude the trial court was correct in dismissing the action. The judgment appealed from is affirmed.
HANSON, P. J., and RENTTO and HOMEYER, JJ., concur.
ROBERTS, J., concurs specially.
ROBERTS, Judge (concurring specially).
This is an action at law brought in the Circuit Court of Union County by plaintiff bank claiming to be the holder of promissory notes signed by August A. Anderson against the estate of his deceased wife. The trial court rendered judgment dismissing the action.
It is the established rule that the law of the place where a contract is made or entered into governs with respect to its validity, obligation, and interpretation. Briggs v. United Services Life Insurance Co., 80 S.D. 26, 117 N.W.2d 804. The notes here were executed in Iowa. The issue presented is whether an action may be maintained and recovery had in the courts of this state because of rights conferred under a statute of Iowa, quoted in the majority opinion, imposing a charge or lien for certain family expenses and education of children "upon the property of both husband and wife, or either of them" and providing that in relation thereto the husband and wife "may be sued jointly or separately."
A statute of one state cannot create a lien on property in another state. 53 C.J.S. Liens § 5. The Iowa statute otherwise authorizes a procedure for the enforcement