McClain v. Tufts

SHINN, P. J.

This is an appeal from the denial of an order directing the Los Angeles County sheriff to levy execution upon and sell certain real property situated in the county. The case arose in the following manner. In March,

[141]

1946, appellant obtained in New York a judgment in tort against respondent for approximately $30,000. In July, 1946, she secured a California judgment based upon her New York judgment. In August, 1946, her attorneys, having had execution issued, delivered to the sheriff written instructions to levy upon and sell the aforementioned real property. This property, although recorded in the name of respondent’s husband, admittedly was community property of respondent and her husband. The sheriff refused to comply with the instructions except on court order. An order was thereupon issued directing the sheriff to show cause why he should not proceed. After a full hearing of the matter, the court below declined to order execution of the writ and discharged the order to show cause.

The sole question presented is whether community property is liable for the wife’s torts. The learned trial judge in a well-considered opinion answered this question in the negative. His conclusion was based upon the nonliability of the husband for his wife’s torts and upon the nature of the respective interests of the husband and wife in the community property. Section 171a, Civil Code, added in 1913, reads as follows: “For civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be liable therefor, except in eases where he would be jointly liable with her if the marriage did not exist.” This enactment did away with our previous adherence to the common law rule that a husband, by virtue of the marital relationship alone, is liable for his wife’s torts.

(Henley

v.

Wilson,

137 Cal. 273 [70 P. 21, 92 Am.St.Rep. 160, 58 L.R.A. 941].)

"Appellant relies upon section 161a, Civil Code, which declares that the respective interests of the husband and wife in the community property are present, existing and equal, subject to the management and control of the husband as provided in sections 172 and 172a, Civil Code. The burden of her argument is that because community property is liable for the husband’s torts