*1 though testimony record, was done on the oral conflicting, considering the affidavits. burden upon appellant prove respondent failure of the (Musser required Fitting, do the annual work. expressed, For the reasons denying appellant’s of the court claim of title was quite proper. quieting The decree title respondent against appellant must sustained.
Judgment affirmed.
Barnard, J., Marks, concurred. appellant have the cause heard in the Supreme Judgment Court, after in the District Court of Appeal, Court on February Appellate No. 12249. Second District, Division Two. December 20, MATTHEWS, RUTH Respondent, v. LOUIS HAMBUR
GER
Joe Orloff for Eugene Respondent. Ernest Walker for WOOD, J. appealed Defendants have from a plaintiff’s favor for the value of certain household furniture wrongfully which was sold defendants.
Plaintiff and Edward Matthews, May 5, B. on 1938, decided to store their furniture and trip take a San Francisco to visit friends and They placed relatives. their household furniture and furnishings, which was com- munity property, storage with Birch-Smith Storage Com- pany Angeles in Los and thereafter drove family Huntington automobile to Park to visit briefly friends leaving on trip to San Francisco. On arriving in Hunt- plaintiff’s ington Park husband left with friends stating away, drove he would call her in an hour or husband did not so. The return but deserted Upon leaving went to Chico to live. plaintiff he sold the furniture to sum $350. Plaintiff did to the sale in not consent or otherwise and did not any part paid by receive of the sum Shortly defendants. purchasing property husband, de- party. the furniture to fendant sold another One of de- inquired fendants husband if he was married a man and was told that he married but that his wife was enough be not well at the sale of the furniture. bases her claim
Plaintiff section Civil which is as follows: manage- Code “The husband has the
ment and control of the absolute other than like however, he separate provided, estate; property, such cannot make sell, consideration, or dispose of the valuable same without a furnishings, or furniture, convey, or encumber the apparel home, wearing clothing or the community, the written or minor children that consent of the wife.” “furniture Defendants contend the words now actually
home” as used in the code refer to argue that the furniture used in the home and since plaintiff's at the time it was sold We plaintiff’s consent to its necessary to have sale. It the section. accept cannot construction of will this refers to furniture noted that undoubtedly home. not furniture in the occu- building when furniture of the home it was located If pied by her husband as their residence. plaintiff and transported new residence should be to a being transported clearly it not lose status while its *3 temporary storage in to Its a warehouse a new residence. change re- likewise did not its status. The statute does not place. quire particular any that the furniture be located at it was home test is whether furniture of the distin- The as guished in might be used commercial as pursuits. in ruling
The not err trial court did property. entitled recover full value the to the of by is made between eases which the action the distinction is filed the xvife death husband and cases filed death In which the action is after the of the husband. Ballinger, (2d) 330, 9 Ballinger (2d) v. Cal. 334 Pac. [70 community property “The it is stated: of the may without the consent of husband set aside entirety during the in its the wife lifetime her of (2d) 4 (Britton Hammell, 221]), v. 690 (2d) Cal. Pac. [52 may aside death be set one-half thereof and after to (Trimble Trimble, 477, 488]).” 219 340 (2d) v. Cal. Pac. [26 no living In review the husband is still the ease under there been showing has been made a division any property or taken which effect action change property. the status of the correctly The trial permitted court ruled when it to sue alone and recover in her name. The own provisions of quoted the code above made were wife, given property for the benefit who has been protect rights which she can court action. transfer The property by plaintiff’s husband without her written against plaintiff, consent was without effect as who had right community. (Duncan restore to Duncan, ex It has been pressly provided in section 370 Proce Code of Civil recovery dure may that a woman for the married sue alone injuries person notwithstanding the sum recovered community property. would be is affirmed.
Moore, J., concurred. McCOMB, Dissenting. favor plaintiff after trial jury before the court without a in an possession personal property action to recover or its reason value, Hamburger able appeal. Mandell The essential facts are these: up
Plaintiff and gave her husband their home, prior leaving city, husband with her consent formerly stored the furniture home company. day The same hus- stored, band consent sold defendants, it to who prior in turn of the furniture to the commencement Plaintiff and separated action. her husband day together stored and have not lived since. question necessary sole be determined: in a warehouse, Is stored the home” furniture “of meaning
within the the Civil Code, when *4 parties maintaining not a homef are fact negative. must be answered Section part Civil Code reads in as follows: management “The husband has the and control of the property, like absolute sepa- than other of his estate; provided, however, rate that he cannot make a property, dispose same or consideration, sell, convey, a valuable or encum- fiirniture, furnishings, fittings ber the . . . added.) (Italics without the written consent of wife.” just clear reading forth, it code section set legislature prevent intended to the sale of of a home consent. without the wife’s written equally It is evident in the instant case that the furniture disposed the husband was not furniture of the home parties for the reason that the did have home at the time not disposed Therefore, of. neces- sary disposition plaintiff to consent thereof and the in favor of which against the value they purchased error. had of was ap- opinion
For foregoing my reasons in pealed from should reversed. appellants have the cause heard Ap-
Supreme Court, judgment in the District Court of February peal, 15, Court Appellate District. No. 6253. Third December NILSSON, Respondent, v. STATE PERSON- LEONARD J. NEL OF THE OF CALIFORNIA BOARD STATE