Tobin v. Galvin

49 Cal. 34 | Cal. | 1874

By the Court, Rhodes, J.:

Action to recover the price of goods sold and delivered. The defendant, Mrs. Campbell, answered, denying the indebtedness, etc., and alleging that at the time when the alleged indebtedness accrued, and ever since, she was a married woman, and has never lived separate and apart from her husband. The Court found that the husband of the defendant resided in Prescott, Arizona; that at his request his wife came to Los Angeles to improve a certain tract of land, and to remain there until he should write to her to return to him, which was expected to be within a year; that her husband furnished her with money for her support, and for the improvement of the lot of land; that the husband and wife corresponded by letters every week; that he visited her twice during the time she remained at Los Angeles; that she returned to Prescott within a year after her arrival at Los Angeles; and that her husband had no knowledge that she was engaged in the business mentioned in the complaint. The Court ordered judgment for the defendant Campbell.

The plaintiffs rely upon the Act of March 9, 1870, entitled “an Act to protect the rights of married women in certain cases.” (Statutes 1869-70, p. 226.) The third section of the Act provides that “the wife, while living separate and apart from her husband, shall have the sole and exclusive control of her separate property, and may sue and be sued without joining or being joined with her husband, and may avail herself of, and be subject to, all legal process in all actions, including actions concerning her real estate.” It is contended by the plaintiffs that the facts of the case show that the defendant, Campbell, was “living separate and apart from her husband,” within the meaning of that section. In our opinion, the language of the Act will not bear that construction. A temporary absence of the wife from her husband does not come within the meaning of the Act. There must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final. The provisions of that Act appearing to have been superseded by the Civil Code, it will not be profitable, at this time, to consider at any length this or any of the other questions arising under that Act. It is sufficient now to say that it was not the purpose of the Act to provide for cases where the wife was temporarily absent from her husband, with his consent.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.