Brown vs. Worden. BROWN VS. WORDEN. HUSBAND AND WIFE: PLEADING. Liability of husband for necessaries furnished wife depends on circumstances, which must be stated in complaint. 1. A husband is not liable for necessaries furnished his wife without his consent, except under special circumstances. 2. In an action against the husband, therefore, a complaint which merely alleges that the plaintiff furnished necessaries to the wife at her request, and that their value "thereupon became due" from defendant to plaintiff, without stating the special circumstances which made him liable, is insufficient on demurrer ore tenus at the trial. 3. If the complaint had averred that the goods were sold or furnished to the defendant, it seems that evidence would have been admissible under it to show that the wife was the authorized agent of her husband in purchasing them. APPEAL from the County Court of Milwaukee County. The complaint is as follows: "Milo W. Brown, the plaintiff in the above entitled action, complains of Euclid Worden, and says that between the first day of November, 1873, and the 15th day of October, 1874, he, plaintiff, found and furnished for one Melissa M. Worden, then the wife of the defendant, at the request of the said Melissa M. Worden, necessaries for her use, to the value of seventy-five dollars; that said sum thereupon, on the 15th day of October, 1874, became due therefor from the said defendant to this plaintiff; that no part thereof has been paid, although this plaintiff has at divers times requested the said defendant so to do; that said sum of seventy-five dollars remains due this plaintiff; whereupon he brings this suit and prays judgment for the said sum of seventy-five dollars with costs." The answer is a general denial. At the commencement of the trial, and before any testimony had been received, defendant objected to the admission Brown vs. Worden. of any testimony, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The objection was overruled, and the trial proceeded and resulted in a verdict for the plaintiff for one dollar damages. The defendant appealed from a judgment against him entered pursuant to the verdict. The cause was submitted on briefs. Leander Wyman, for appellant, with F. B. Van Valkenburgh, of counsel, among other points, urged that the complaint was insufficient because it failed to show either that the goods sued for were furnished to or for the use, or on the account or credit, of the defendant, or that he had neglected or refused to furnish his wife any of the necessaries of life. McMullen & Houts, for respondent: The rule of law is, that by virtue of the marital relation, and in consequence of the obligations assumed by him upon marriage, the husband is bound for the supply of necessaries to the wife so long as she is not guilty of adultery or elopement; and "his assent is presumed to all necessary contracts upon the account of cohabiting, unless the contrary appear.” Cromwell v. Benjamin, 41 Barb., 558; Schouler on Dom. Rel., 80-82; Etherington v. Parrott, 1 Salk., 118. The objection of the appellant is, substantially, that the complaint does not negative certain defenses that he might have had. LYON, J. Nothing is alleged in the complaint to show that the defendant is liable for the articles therein mentioned, furnished by the plaintiff to the defendant's wife, except that they were furnished at her request, and were necessaries. The claim that the defendant is liable to pay for such articles depends upon these averments alone. A husband is not liable, ipso facto, for necessaries furnished his wife without his consent. It is only under special circumstances and conditions that he is liable therefor. Sturtevant v. Starin, 19 Wis., 268; Warner v. Heiden, 28 id., 517; VOL. XXXIX.-28 Brown vs. Worden. Bach v. Parmely, 35 id., 238. Hence, when a third persón gives a wife credit for necessaries, there can be no presumption that the husband is liable to pay for them. The facts which render him liable must necessarily be averred and proved, as all facts must upon which the cause of action depends. In this complaint no such facts are averred. Every averment which it contains may be true, and still the plaintiff may not be entitled to recover. The complaint fails, therefore, to state facts sufficient to constitute a cause of action, and the objection made at the commencement of the trial to the admission of any testimony under it, for that reason, should have been sustained. Had it been alleged in the complaint, as it was in Sturtevant v. Starin, supra, that the articles mentioned therein. were sold or furnished to the defendant, a different question would be presented. In such case, the question of the authority or agency of the wife might arise, and it is probable that evidence would be admissible, under such a complaint, to show that the wife was the authorized agent of her husband in the transaction. But there would be no presumption that she was such agent; for a wife is not ipso facto the agent of her husband. Savage v. Davis, 18 Wis., 608. Whether the obligation of the husband to pay for necessaries furnished his wife without his consent is placed upon the ground that she is his agent for the purpose of procuring them, or solely upon the duty which grows out of the marital relation (Bach v. Parmely, supra), the result is the same. In either event, the complaint is barren of averment showing that the defendant is liable in this action. By the Court. The judgment is reversed, and the cause remanded for further proceedings according to law. Pringle vs. Dunn and others. (Motion for rehearing.) PRINGLE VS. DUNN and others. (Motion for rehearing.) PRACTICE: REHEARING AFTER JUDGMENT. (1) General rule as to rehearing after judgment. (2-4) Rehearing in this court, after judgment on appeal. 1. The rule of law governing all the courts of this state, including the supreme court, is, that as to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of a judgment, it is precluded from altering its decision at a subsequent term, except as authorized by statute or by general rules of practice established by this court, having statutory force. 2. The provision of sec. 38, ch. 125, R. S., empowering courts, at any time within one year after notice thereof, to relieve a party from a judgment rendered against him through his mistake, excusable neglect, etc., has no application to judgments of this court on appeals. 3. This court has no power to review its own judgments on appeals after the term at which they are rendered, unless the power is carried over to a subsequent term by motion for rehearing actually made within the rule, and brought to a hearing within the term at which it is made. But this does not prevent the correction of mere mistakes in the entry of judgment. 4. Under ch. 264 of 1860-which requires the clerk of this court to remit appeal papers to the court below within thirty days after judgment here on the appeal, unless this court directs them to be retained for the purpose of a motion for a rehearing, —jurisdiction here of an appeal ceases when the papers are so remitted; and it ceases at the end of the thirty days, even when the record is not actually remitted, unless it is retained here by order of the court under the statute. APPEAL from the Circuit Court for Milwaukee County. In this action to foreclose a mortgage, the trial court having rendered a judgment in favor of all the defendants, this court, on appeal, at the January term, 1875, held that the mortgage was valid, though not so recorded as to constitute constructive notice, and that the defendants Molloy and Bartoz were chargeable with actual notice; and it reversed the judgment *In the former report of this case, the name of this defendant is given in the form Maloy. Pringle vs. Dunn and others. (Motion for rehearing.) below as to them. See 37 Wis., 449-468. At the January term, 1876, it appearing that the papers in the cause had never been remitted, this court, on Molloy's motion, directed its clerk to retain them until further order; and on the 21st of March, Molloy asked leave to file a motion for a rehearing as to so much of the judgment as affected him. In support of this motion affidavits of G. C. Prentiss, Esq., and John T. Clark, Esq., were read, the substance of which was, that said Clark was a defendant herein, and the judgment of the trial court in his favor was affirmed by the judgment of this court; that Molloy took title from Clark, through a mesne conveyance; that Clark defended on the ground that he purchased in good faith without notice of the mortgage in suit, and his deposition showing that he so purchased, and also showing his relation to Molloy's title, was read on the trial below, and was included in the bill of exceptions on appeal to this court; but that, through mistake and inadvertence, this deposition was not mentioned in the printed case, and the relation of Molloy's title to that of Clark was overlooked in the argument here. Circumstances explaining and excusing this oversight are stated at length; and it is also stated that Mr. Prentiss' attention was not called to the relation between Molloy and Clark until a few days before this motion was made, and that Mr. Clark had not been aware until some time in the same month of the true state of the action, or that the facts as to Molloy's title had not been presented to the court. I. C. Sloan, for the motion, after commenting upon the fact that the bill of exceptions in this cause shows a complete defense in Molloy's favor, and insisting that the circumstances set forth in the affidavits fully explained and excused the failure of counsel to present that defense properly to this court in the first instance, and the subsequent delay in moving for a rehearing, contended further, that the statute (Tay. Stats., 1446) gives the court power, in case of a judgment rendered against a party through his "mistake, surprise or |