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The suggestion that, where the wife is joined with her husband in an action to recover a judgment for necessaries, and where such a judgment is obtained against her, her separate property which is by section 171 exempted from execution under such judgment might nevertheless be subjected to the satisfaction thereof, is altogether without merit. Her liability is measured and fixed by the statute and would necessarily be so measured and fixed by the judgment. There would be no more ground for the apprehension of any such result in a case where she was joined with her husband than where, having herself expressly contracted for the necessaries, she was sued alone and judgment secured solely against her.

The procedure which counsel for the respondent suggests would be the proper one in a case of this character, even if 'appropriate in any event, would amount in practical effect to a trial in an unusual way of the very issues upon which the wife would be entitled to be heard at some time before her property is taken for a debt contracted for necessaries. He in effect says that the statute contemplates that all the questions vitally affecting the wife's rights in an action of this kind, where instituted against the husband alone, may be litigated and determined in some other appropriate proceeding after judgment had and execution issued, where it becomes necessary to resort to the wife's separate estate to satisfy the judgment. His position, more explicitly explained, is this: That (assuming that the wife is responsible for necessaries furnished to herself and husband where the latter alone contracts for the same), after judgment has been obtained against the husband, and the execution returned unsatisfied, the plaintiff may apply to a court of equity, by way of a creditor's bill, making the wife a party, in aid of the execution of the judgment; that in such bill the plaintiff could show that the judgment was for the necessaries of life furnished to the husband or wife while they were living together, and that the judgment was unsatisfied; that the wife owned separate property not “held by her at the time of her marriage or acquired by her by devise or succession after marriage,' describing the property and praying that the judgment be declared a lien on such property and that the court order it sold in satisfaction of the judgment. “The wife would then," argues counsel, “be accorded her day in court to

traverse the issues thus made by the bill, and the court under its equity jurisdiction would have full power to determine the whole question, etc.

Thus, as heretofore suggested, counsel concedes that there are issues or questions which must arise in this action as to which the wife would be entitled to her “day in court”—that is, that she would be entitled to an opportunity to combat the existence of conditions upon which alone certain of her separate property may thus be seized. But, assuming that the wife in a case of this character is not a necessary but only a proper party, why all such circumlocution, involving, as necessarily it must if adopted, a violation of the rule designed to avoid a multiplicity of actions, when all the issues pertaining to the wife's rights may be litigated and adjudicated in an action against her and her husband jointly? Of course, as in any other case where it is claimed that property levied upon is exempt from execution, the question whether her separate property levied upon in execution of a judgment obtained against her for necessaries is or is not exempt under the section, may be tried and decided in some appropriate proceeding after execution. This would necessarily be so because that issue could not arise except upon the taking of the property under the execution. But to say that it would be proper in such a proceeding to try the other issues vital to the wife's rights in such a case as this would be the equivalent of holding that a judgment binding upon her property may first be rendered and entered and the issues, the determination of which would be necessary to justify such judgment, could be tried afterward. Obviously, neither the statute upon which this action is founded nor our system of procedure contemplates any such roundabout way of adjudicating rights.

It is further insisted that there is no specific provision in the statute under consideration or in the Code of Civil Procedure authorizing the joinder of the wife with the husband in such an action as this, and that, therefore, such joinder would be without warrant of law and improper. The reply to this proposition is, however, that no specific provision authorizing a joinder is required in a particular case where, as is true in this instance, such authority is to be found among the general provisions of our procedure. As before declared, an action of this character, whereby it is sought to charge

certain of the wife's separate estate with the extinguishment of a debt contracted for necessaries is, in effect, one upon an obligation, and it is very clear that under that view of the action the wife may be joined therein with her husband by authority of section 383 of the Code of Civil Procedure and also under section 382 of the same code.

The further objection is made that the complaint states no cause of action against the wife because it is not therein alleged that the services alleged to have been rendered by the plaintiff were for “necessaries.” The complaint, as we have seen, alleges that the plaintiff is a physician and surgeon by profession and that the amount sued for is due for services rendered by him for the defendants in his capacity of physician and surgeon. If it be true, as we have held, that medical services are legally included among the necessaries of life, then the complaint by the allegations above referred to shows that the services rendered were necessaries. The mere statement that they were “necessaries'' would involve a legal conclusion and, of course, could add nothing to the force of the averments in that respect.

For the reasons stated in the foregoing, the judgment and the order appealed from are reversed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1032. Third Appellate District.—November 4, 1912.)

W. A. MOORE et al., Petitioners, v. SUPERIOR COURT

OF THE STATE OF CALIFORNIA IN AND FOR
THE COUNTY OF MADERA, and HON. W. M. CON-

LEY, Judge of said Superior Court, etc., Respondents. ELECTION CONTEST-DISQUALIFICATION OF JUDGE—CONTINUANCE BEYOND

TWENTY Days—PROCUREMENT OF QUALIFIED JUDGE—JURISDICTION NOT LOST-MANDAMUS.—Where an election contest, owing to the disqualification of the judge, was continued beyond the twenty days' limit fixed by section 1121 of the Code of Civil Procedure, in order that a judge qualified to try the contest may be procured, jurisdiction to hear the contest was not lost in such case, but where it

was deemed lost, mandamus will lie to compel the court to reset

the contest for hearing. ID.-FAILURE TO TRY CAUSE FOR WANT OF JURISDICTION-PRIOR DEMAND

AND REFUSAL TO RESET CAUSE NOT A CONDITION OF MANDAMUS.Where the court failed to reset and try the cause on the ground that jurisdiction to try the same had been lost, prior demand and refusal of the court to reset the contest for trial is not a condition precedent to a writ of mandamus to compel the court to reset tho

contest. ID.—MANDAMUS-EXCEPTION TO RULE AS TO DEMAND AND REFUSAL.--

While it is the general rule that an officer will not be compelled by the writ of mandamus to do any thing which he has not been first asked to do, and has neglected or refused; yet where the attitude of the officer toward the matter has been officially declared to be such that an application to him would be idle and fruitless, the reason for the rule ceases, and the writ of mandamus will issue.

PETITION for Writ of Mandate to the Superior Court of Madera County. W. M. Conley, Judge.

The facts are stated in the opinion of the court.

Drew & Drew, for Petitioners.

Raleigh E. Rhodes, for Respondents.

CHIPMAN, P. J.—The petition with its exhibits is a voluminous document. The essential facts therein appearing are as follows: That petitioners are electors of Madera County; on July 3, 1912, they duly filed their statement contesting the vote in precinct 2 of said county at a certain election on June 8, 1912, under the act of the legislature, to provide for the regulation of the traffic in alcoholic liquors, approved April 4, 1911; pursuant to the provisions of section 1118a of the Code of Civil Procedure, to wit, on July 8, 1912, the said court duly made its order for a special session of said court to be held on July 23, 1912, to hear said contest and directed citations to issue to defendants to appear on said day and answer said contest; on said day counsel for all the parties appeared, Hon. R. H. Latimer, under assignment by the governor, sitting as judge of said court; one of the contestants objected to the case being heard by said judge because he came from a so-called “wet county," who, without

affidavits of prejudice being filed or other showing made, retired from the bench, disclaiming that he knew anything about the case or had any prejudice in favor of or against any of the parties; respondent, Judge Conley, the presiding judge of that court, resumed the bench; counsel for petitioners expressed a willingness to have Judge Conley try the case, but he deemed himself disqualified and stated that the only course open was “to order a continuance until such time as another judge may be procured to try the case”; counsel for contestees objected to a continuance for the reason that it “would be a waiver of jurisdiction.” “The Court: Will you stipulate (addressing all the counsel) that any judge in Los Angeles County can try the case? I don't know who the judge will be. Mr. Drew (counsel for petitioners): I am willing to put it on that broad ground. Mr. Rhodes (counsel for respondents) : Yes, and reserving all our rights in the matter. The Court: Now when do you want to try this case, how would the 11th day of September suit? Mr. Drew: Yes. Mr. Rhodes: All right. The Court: Then, Mr. Clerk, the order will be that this extra session of court will be continued until September the 11th, 1912, at 10 o'clock A. M."'; thereafter, on July 27, 1912, Judge Conley made an order, contestants not being present, designating Honorable Charles Monroe, judge of the superior court of Los Angeles County, to preside at said trial, “to be held on September 11, 1912, at the hour of 10 o'clock A. M." “Mr. Rhodes: Defendants and contestees accept (except) to the ruling of the court on the ground that the court is deprived of its jurisdiction.Immediately thereafter Judge Conley went to the county of Los Angeles and did not return to Madera County until August 10, 1912, and on that day counsel for petitioners appeared in said court, Judge Conley presiding, and moved the court to vacate the minute orders of July 23rd and July 27th, aforesaid, “and reset said contest for hearing within twenty days of July 23, 1912, as provided in section 1118a et seq. of the Code of Civil Procedure." (This motion was made eighteen days after the order of July 23rd and two days within the statutory period of twenty days.) As to what occurred at the hearing of this motion counsel for petitioners and respondent, the judge, do not agree. We quote from the return: “In this behalf respondent avers that upon the mak

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