Van Maren v. Johnson

15 Cal. 308 | Cal. | 1860

Field, C. J. delivered the opinion of the Court

Cope, J. concurring.

This is an action brought for services rendered by the plaintiff Constantina, previous to her marriage with Van Maren, to the defendant Emily, previous to the latter’s marriage with Johnson. The intermarriage of the plaintiffs transpired before the institution of the action, and the intermarriage of the defendants during its pendency.

We are clear that the action is rightfully brought in the name of the plaintiffs. Though the proceeds, which may be received from the judgment, will constitute the separate property of the wife, yet the control and management of the same will devolve, under the statute, upon the husband. He will be entitled to take immediate possession of the same, and for that reason, if for no other, was properly united with betas a party.

The statute provides that when a married woman is a party, her husband shall be joined with her, except in certain specified cases. (Prac. Act, sec. 7.) In those exceptional cases, the statute is not obligatory upon the wife to sue or defend alone; it confers only a privilege which, in many instances, it may be important for her to assert for the protection of her interests, and in the exercise of which, the fullest liberty should be accorded to her. When the action concerns her separate property, and is not between herself and husband, she may seek the aid of the Court in company with him or without him.

The intermarriage of the defendants was suggested by the counsel of the defendant, Emily, and upon their motion, her husband was made a co-defendant. This proceeding was proper, and indeed, necessary; but the husband should have been brought in, and the averment of the marriage should have been made by a supplemental complaint, and not by an amendment to the original. Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendants, and in consequence, the character of the judgment which is sought, cannot be incorporated into the original complaint by an amendment, without presenting averments inconsistent with the date of the commencement of the action. No objection, however, is taken on that ground in the present case, and the matter is only alluded to because the practice is one of frequent occurrence, and ought not to be followed.

The judgment was rendered against both defendants, the husband and wife, with a direction that it be enforced only against the separate property of the wife, and the common property of both. The objection taken is the subjection, which the judgment authorizes, of the common property to its payment. The statute in terms provides, that the separate property of the wife shall be liable for her debts contracted previous to the marriage, and at the same time, that the separate property of the husband shall not be thus liable. It is silent as to the liability of the common property for such debts, and also as to the liability of that property for the previous debts of the husband. Yet the common property is not beyond the reach of the husband’s creditors existing at the date of the marriage, and the reason is obvious; the title to that property rests in the husband. He can dispose of the same absolutely, as if it were his own separate property. The interest of the wife is a mere expectancy, like the interest which an heir may possess in the property of Ms ancestor. (Guice v. Lawrence, 2 La. Ann. 226.) The objection must then be solved by considerations arising from the rule of the common law. That law constitutes the basis of our jurisprudence, and rights and liabilities must be determined in accordance with its principles, except so far as they are modified by statute. By the common law, the husband, during the coverture, is liable for the debts of the wife contracted dum sola. The statute modifies this law in two respects; it renders the separate property of the wife liable, and exempts the separate property of the husband. (Vanderheyden v. Mallory, 1 Coms. 472.) Beyond this exemption of his separate property, the liability of the husband exists—that is to say— he is liable to the extent of the common property. It matters not what was the origin of the common law doctrine; its rule is settled and exists independent of the grounds upon which it originally rested. (See Reeves’ Domestic Relations, 2.) The liability of the husband being restricted under the statute, the judgment in its direction was correct, and must be affirmed.

So ordered.

On petition for rehearing, defendants’ counsel made the point that, even if the common property be liable for the debts of the wife contracted before marriage, still the judgment ought to have directed that recourse first be had against her separate property, and in case of deficiency, then against the common property; and that the creditors of the community were entitled to preference out of the community property.

On such petition, Field, C. J. delivered the opinion of the Court-Baldwin, J. concurring.

The petition for a rehearing is denied. The husband, as we have stated in our opinion, should have been brought in, and the averment of the marriage of the defendants, since issue joined, should have been made by a supplemental complaint, and not by an amendment to the original. No objection, however, was interposed on this ground at the trial; but on the contrary, the proceeding was taken by the consent of all parties in open Court, immediately upon the suggestion of the marriage.

The objection that the suit, after amendment of the complaint, was against the defendants jointly, and the evidence failed to establish any cause of action against the defendant, Levi Johnson, is not well taken. The action is for services rendered by the plaintiff, Constantina, before her marriage with Van Maren, to the defendant, Emily, before the latter’s marriage with Johnson; and the liability of the common property of the defendants, and the necessity of making Johnson a party, arise from the subsequent marriage. The orders and proceedings of the Court, however informal and irregular, show the true facts of the case, and the judgment will be a bar to any future action against the defendants for the same cause.

The separate property of the wife, and the common property of both husband and wife, are equally liable for the debts of the wife contracted previous to her marriage, and judgments recovered for such debts may be enforced against either class or both classes of property indiscriminately.

Rehearing denied.