De Hart v. Allen

NOURSE, P. J.

Upon a hearing of a third party claim under section 689 of the Code of Civil Procedure judgment went against the claimant, and she appeals. The single ground urged on the appeal is the question of the sufficiency of the evidence to support the judgment. For that reason respondents’ argument relating to appellant’s failure to “present each point separately under an appropriate heading” (Rule VIII of the Rules for the Supreme Court and District Courts of Appeal) has no merit.

On July 30, 1936, Anna Allen deposited in the bank the sum of $680 in a special savings and checking account opened in her own name. At the same time there was filed with the bank her written power of attorney authorizing Joe Allen to draw upon that account. The parties were then living together as husband and wife, though no legal marriage was shown. Other deposits were made in the account from time to time and Joe Allen drew some cheeks against the account which were signed “Anna Allen, by Joe Allen, agent.” On January 4, 1940, the balance in the account of $370.75 was attached under a writ issued in an action pending against Joe Allen individually. On January 18, 1940, Joe and Anna

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Allen were formally married under the provisions of section 79 of the Civil Code.

All the foregoing facts are conceded. The testimony of the third party claimant regarding the source of the moneys which went into the bank account from time to time and the use of the moneys withdrawn were apparently rejected by the trial court. The testimony of the debtor denying his interest in the fund and the source of the several deposits must also have been rejected. It is upon this assumption that the respondents argue that, as the trial court did not believe this testimony, it could reject all the testimony of these witnesses because of the suspicious character of the proof offered. This may be so, but it would leave respondents without a case. A judgment cannot rest on suspicion alone, and there are certain presumptions applicable here which the statute declares to be satisfactory evidence, if uncontradicted. When these presumptions furnish satisfactory evidence of the fact to be proved, and are uneontradicted, they cannot be rejected arbitrarily because of suspicious circumstances in the testimony offered to