Novo v. Hotel Del Rio

VAN DYKE, P. J.

Emilia Novo brought this action to recover, as the wife of Joe F. Novo, Sr., community property which she alleged he transferred without valuable consideration and without her written consent, in violation of the provisions of section 172 of the Civil Code. It is without dispute in the record that the transfer of which appellant complained was a transfer of community personal property of herself and her husband and that the transfer had its roots in a gambling transaction between her husband and Arthur Valine, Ed Emigh and Glenn Maxey. On June 26, 1952, the four men engaged in a game of draw low-ball poker; and when the game was over, Joe Novo had lost to the other players a total of $7,300. During the game he gave to Arthur Valine a check drawn on a Rio Vista bank in the sum of $5,300 and made out to cash. This check, after the game, Arthur delivered to Emigh and Maxey, and they cashed the same and divided it among them. On the day after the game, Joe Novo also gave a second check drawn on the same bank to Arthur Valine. This check Arthur endorsed, cashed, and from the proceeds retained $1,200 as his share of the winnings of the evening. He gave the rest to Emigh and Maxey, and they divided it between themselves as their final share of winnings.

By her complaint, appellant endeavored to hold the Hotel Del Rio, a partnership, composed of the father and brother of Arthur Valine, responsible for his losses on the theory

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that they were running a house game, but the findings of the trial court upon substantial evidence were against these allegations. She also sought to hold Arthur Valine as wholly responsible for Joe Novo’s losses, claiming that he was running a banking game, acting as banker, and that, therefore, the total of Joe’s losses were losses to Arthur. But the evidence and the findings are against this claim, also.

It appears from the evidence that the game was an ordinary four-handed draw poker game of the low-ball variety; that it had lasted from around 10 p. m. until 6 a. m. the following morning, during which time many hands were played; and that when Joe Novo gave the checks to Arthur Valine he did so with the authorization to Arthur to pay his losses to those who had won money from him during the evening, including his losses to Arthur. Under no consideration, therefore, could plaintiff and appellant recover from Arthur the community funds which had, upon Joe’s direction, passed to Emigh and Maxey who were not made parties to the suit. It still remains, however, to determine whether or not she could recover from Arthur the money which her husband paid him.