2 P.2d 496 | Cal. Ct. App. | 1931
Plaintiff recovered judgment in conversion in the lower court. This action was originally commenced against James C. Byers, who was sheriff of San Diego County and who levied an attachment on the stock of goods in an action against C.X. Thompson. Plaintiff, who is the wife of C.X. Thompson, filed a third party claim. The attaching creditor filed with the sheriff an indemnifying bond and obtained judgment against C.X. Thompson. The sheriff sold the property under execution issued on the judgment. Subsequently James C. Byers died and appellant, who was appointed executrix of his estate, was substituted as party defendant in this action and appeals from the judgment. [1] The first error relied upon is that the trial court erred *216
in holding that plaintiff's failure to file and publish any certificate of carrying on business under a fictitious name was immaterial as to her right to maintain the action. It is admitted that plaintiff was conducting business under the name of Home Specialty Company, and was retailing goods under such name. The court found that plaintiff had not, prior to the trial, nor at any time, published any certificate as required under section 2468 of the Civil Code. In an early case our Supreme Court held that section 2468 of the Civil Code relative to the filing and publishing of fictitious names, did not apply to actions of tort. (Ralph v. Lockwood,
[2] Appellant next contends that the evidence is insufficient to support the findings. The main contention of appellant is that plaintiff's only witness was C.X. Thompson, her husband, whose evidence was insufficient to overcome the presumption established by section 164 of the Civil Code that all property acquired by either spouse during marriage is community property. The testimony of C.X. Thompson is that plaintiff entered into the business in 1924 with her sole and separate property which she had before her marriage; that such property consisted of $1200 in cash and a lot which she sold and put into the business; that she ordered the goods which were charged to her by the wholesalers; that she carried the bank account in her own name and drew checks thereon; that no community funds were invested in said business; that he never contributed any funds to the business; that an agreement was had between himself and his wife that it should be her sole and separate business; that at no time had he operated the same except at one time when his wife was called away by sickness; that he did not handle the funds of the business and had not worked for the Home Specialty Company. This uncontradicted evidence was sufficient to overcome the presumption of the statute. If believed by the court, one witness who is entitled to full credit is sufficient to prove any fact.
[3] The complaint in this action was originally brought against James C. Byers and alleged that he was the sheriff of San Diego County and prayed for judgment against him individually. The answer justifies his acts on the ground that he acted in his official capacity by virtue of a valid writ of attachment. In the trial it was stipulated that he acted at all times in his official capacity. *218
A sheriff may be sued in his individual capacity for torts committed by him in the course of his official duties and defendant would not be entitled to a finding on the fact unless such failure to so find would be prejudicial to the sheriff's rights. Finding number five sets out that at the time of the levy of the attachment the defendant was acting as sheriff of San Diego County. In reading and construing the findings as a whole, we see nothing which would constitute such error as to warrant a reversal of the trial court.
[4] It is also contended that the judgment must be reversed because it does not appear that the claim against the Byers estate has ever been presented and disallowed by the executrix. Section
"All claims arising upon contracts, whether the same be due, not due, or contingent, and all claims for funeral expenses and expenses of the last illness must be filed or presented within a time limited in the notice, and any claim not so filed or presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be filed or presented at any time before a decree of distribution is entered," etc.
The claim in this action was one arising in tort. It follows that it was not necessary to prepare and file with the executrix for allowance or otherwise, any claim. There is no statute requiring the presentation of such a claim to the executrix. The case of Millar v. Millar,
Some objections are made to the rulings of the trial court on the admission of testimony, but a close examination of *219 the record does not disclose such errors as would justify a reversal of the cause.
The judgment of the trial court is therefore affirmed.
Jennings, Acting P.J., and Marks, J., concurred.