95 Cal. 343 | Cal. | 1892
Upon further consideration of this case, we are satisfied with the conclusion reached in Department One on the former hearing, and with the opinion then filed, and for the reasons stated in that opinion, the judgment and order are affirmed.
The following is the opinion above referred to, rendered in Department One on the 10th of December, 1891:—
Beatty, C. J. — The defendant, as sheriff of the city and county of San Francisco, levied a writ of attachment, issued in an action commenced by certain creditors of Mrs. M. A. Rix, against her and her husband, upon the furniture of a boarding and lodging house known as the “ Colonnade.” The plaintiff, claiming to be the owner
The following are the findings of the superior court:—
“ 1. That the plaintiff was not, on the twentieth day of June, 1886, nor at any time prior to the commencement of this action, the owner or entitled to the possession of all or any of the household furniture described in this complaint. The defendant, on or about said twentieth day of June, 1886, took said furniture in the manner hereinafter stated; and the plaintiff thereafter made a demand upon the defendant for the surrender and delivery of said furniture; and the defendant then and at all times refused to surrender and deliver the same to plaintiff; 2. That all the allegations of subdivision 2 of the defendant’s answer are true; that the defendant seized and holds the property described in plaintiff’s complaint under the circumstances and for the purposes stated in said subdivision 2. As conclusions of law, I find the defendant entitled to judgment for his costs of suit, and to be dismissed hence without delay.
“Signed December 29, 1887.
“James G. Maguire, Judge.”
1. The judgment is not erroneous for want of an express finding on the issue of value and damage. There could be no finding of damage, because the effect of the findings made is, that there was no damage, and the value of the goods is of no consequence. Whether it was three thousand or twenty thousand dollars could make no possible difference in the result. Under the facts found, no additional finding as to value could have prevented a judgment for the defendant for costs; and it has been frequently held in this court that the failure to pass upon an issue which has thus become imma
2. No question was raised in the superior court, either by demurrer to the answer or by objection to evidence, as to the sufficiency in form and substance of the defendant’s plea of justification under the attachment; and conceding, without deciding, that if such an objection had been made it would have been necessary for the defendant to amend his answer, we are bound to hold, in accordance with our settled rule, that where, as in this case, the trial has been conducted in the superior court upon the assumption of all parties that a plea is sufficient, it cannot be objected to for the first time when the case is here on appeal. The judgment, therefore, must be affirmed.
The principal question in the case, however, arises
The evidence shows that Alfred and Margaret A. Rix were married in 1858, and took up their residence in a house belonging to the husband on Pine Street, near Powell. At the date of the marriage the wife had no property, but shortly thereafter her husband gave her some lots at the Mission, which she subsequently sold. With the proceeds she purchased a vacant lot adjoining
To begin with, she owned the Pine Street house and lot, where she carried on a business which was hers exclusively, and in which her husband refused to have any
As to the furniture in question, these circumstances, we think, are more than sufficient to overcome the presumption which ordinarily obtains, that any property purchased by either spouse after marriage is community property. Even if it appeared that some of the furniture originally put in the Pine Street house was bought and paid for by Mr. Rix, the subsequent conduct and declarations of the parties would warrant the inference that it was a gift to his wife. And if, with his knowledge and express or tacit consent, she used some portion of her monthly allowance to pay bills incurred in her business, that also would, as between themselves at least, be regarded and treated as a gift. To what extent creditors of the husband could call in question such transfers to the wife, or how far they could resort to the proceeds of a business, carried on as this was, in disregard of the provisions of the statute relating to sole traders, is a question which does not arise in this case; the only
The judgment and order of the superior court are affirmed.