Taylor v. Darling, 125 P. 249

125 P. 249 | Cal. Ct. App. | 1912

This is an appeal from an order made after final judgment, denying defendant's motion made under sections 663 and 663a of the Code of Civil Procedure, to vacate and set aside the judgment rendered and entered against defendant as not supported by the facts found.

1. The contention of respondent that such order is not appealable is fully answered by the cases of Bond v. UnitedRailroads, 159 Cal. 270, [Ann. Cas. 1912C, 50, 113 P. 366],Condon v. Donahue, 160 Cal. 749, [118 P. 113], and Rahmel v.Lehndorff, 142 Cal. 681, [100 Am. St. Rep. 154, 65 L. R. A. 88,76 P. 659]. The order denying such a motion is one made after final judgment, and is appealable under the provisions of section 963, Code of Civil Procedure.

2. Defendant was sued alone for the alleged conversion of $1,000.

She answered and pleaded in abatement that she "is a married woman, not living separate and apart, or separate or apart, from her husband, and that her husband has not been made a party to this action," and the court found this allegation of her answer to be true, but nevertheless rendered judgment against her as prayed for.

A married woman not living separate and apart from her husband cannot be sued without joining her husband as a party defendant, except where her husband is the plaintiff. (Code Civ. Proc., sec. 370; McDonald v. Porsh, 136 Cal. 301, [68 P. 817].)

The defect of parties defendant in this case did not appear upon the face of the complaint, but defendant pleaded the facts in her answer, and the court found in accordance therewith. Such finding necessarily defeated plaintiff's right to recover against defendant in this action. (Bogart v. Woodruff, 96 Cal. 609, [31 P. 618]; McDonald v. Porsh, 136 Cal. 301, [68 P. 817]; Code Civ. Proc., sec. 370.)

The court therefore erred in denying defendant's motion, and the order is reversed and the court directed to grant said motion.

Lennon, P. J., and Kerrigan, J., concurred.