S.F. No. 7038. | Cal. | Mar 3, 1915
Petitioners applied for a writ of mandate requiring the respondent as judge of the superior court to dismiss a certain action as to Frances B. Horsburgh. An alternative writ issued and the matter comes on regularly for decision and a determination whether or not the writ shall be made permanent.
The action in which petitioners were defendants was commenced on July 9, 1910, by Joseph B. Keenan and Carlotta Keenan, his wife, against a number of persons, including the Horsburghs. The complaint averred that they were husband and wife. The basis of the action was an alleged claim for damages for personal injuries sustained by Carlotta Keenan on July 12, 1909, by reason of the defective condition of a sidewalk in front of property, belonging to Frances Horsburgh in the city and county of San Francisco. On July 1, 1913, summons and complaint were served on Mrs. Horsburgh, but her husband was not served until more than three years after the date of the issuance of the summons and upon motion the action was dismissed as to him. On August 1, 1913, Mrs. Horsburgh moved for dismissal of the action on the ground that, as it had been dismissed so far as her husband *502
was concerned, it might not be prosecuted against her because, under the provisions of section
"The statement made in McDonald v. Porsh,
It is the settled law of this state that unless modified by statute, the common-law doctrine that a husband must be joined as a party defendant in a suit growing out of a wife's tort, still prevails. (Henley v. Wilson,
"When a married woman is a party, her husband must be joined with her, except:
"1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone.
"2. When the action is between herself and her husband, she may sue or be sued alone.
"3. When she is living separate and apart from her husband by reason of his desertion of her, or by agreement, in writing, entered into between them, she may sue or be sued alone." *503
The recent amendment of this section (Stats. 1913, p. 217) did not alter the first subdivision in any respect which is at all material to this discussion.
Mrs. Horsburgh is admittedly living with her husband and they are not adverse parties in the suit in which the Keenans are plaintiffs. Therefore if any authority exists for maintaining an action against her it must be found in the first subdivision of the quoted section and it will be noticed that said subdivision, while it permits a married woman to sue alone in an action concerning her separate property, does not provide that she maybe sued alone. The learned trial court was in error therefore in construing that subdivision as giving authority for maintaining a suit against a married woman without joining her husband as a party. The rule is correctly stated in McDonald v. Porsh,
"If, however, the tort is not committed by the wife personally, but is done by means of her separate property, or in the use thereof, or under color or claim of ownership of her separate property, the action should be brought against her individually, without joining the husband as codefendant, in all those states whose statutes permit a married woman to be sued alone in respect of all matters which concern her separate estate." (See Pomeroy's Code Remedies, p. 314, section 222.)
In many of the states the wife may sue or be sued in actions relating to her separate property without the necessity of her husband being joined as a party to the action. This is the rule in New York, for example (Rowe v. Smith,
"Furthermore, by the express provision of the statute, the wife cannot be sued without her husband for a tort which does not concern her separate estate. She can sue or be sued alone only when, — 1. The action concerns her separate property *504
or her claim to the homestead; 2. When the action is between herself and husband; 3. When she is living in separation by his desertion, or under an agreement in writing. (Code Civ. Proc., sec.
The sole question in that case was whether or not the husband was liable in damages for the tort of his wife in committing an assault upon the person of another. It was held that he was liable. There was no question with reference to the kind of tort which we are here considering and the quoted language was adictum. Doubtless the quoted interpretation of subdivision 1 of section
Mandamus is the proper remedy. As we said in Puterbaugh v.Wadham,
"It is undoubtedly true that the writ of mandamus is not a writ of error and that, generally speaking, it is not available for the purpose of altering or varying in any particular the finding of a judicial or quasi judicial body or officer acting within its or his appropriate jurisdiction; but where the facts are not disputed and the only matter to be determined is the duty of the body or officer under the law, the court will define such duty and enforce not only its performance but the carrying out of the obligations of the respondent body or officer in a particular manner."
There is no plain, speedy, and adequate remedy available to petitioners for the court's failure to grant their motion to dismiss the action for damages so far as it related to Mrs. Horsburgh. Appeal is no such remedy for there is no assurance that the cause will be promptly brought to trial and Mrs. Horsburgh may be subjected for years to the inconvenience of having a suit for damages pending against her. Neither should she be put to the expense of defending in the action to which she remains a party through the trial court's error in denying her motion. Mandate will issue to compel the superior court to reinstate an appeal erroneously dismissed (Golden Gate Tile Co.
v. Superior Court,
Let the alternative writ be made final and the judge of the superior court be required to dismiss the action as to Frances B. Horsburgh according to the direction contained in said writ.
Sloss, J., Lorigan, J., Henshaw, J., and Angellotti, C.J., concurred.
Rehearing denied.