Kirkpatrick v. Harvey

BARNARD, P. J.

This is an action upon a judgment. The complaint, which was filed on December 29, 1939, alleged that on November 28, 1934, the plaintiff’s assignor recovered judgment against this defendant in the sum of $5,539.57. The answer set up as a separate defense that the judgment sued upon was a joint judgment against this defendant and her husband; that such judgment was recovered in an action upon a promissory note signed by this husband and wife and secured by. a deed of trust on real property; that the money was borrowed for the benefit of the community and the trust deed given was upon community property; that the debt evidenced by the note was therefore the debt of the husband and not of this defendant; and that on October 7, 1935, the husband was discharged in a bankruptcy proceeding in which the debt evidenced by the prior judgment was listed and in which all of the community property of these , parties and all of the separate property of the husband were listed and inventoried.

At the trial, the court excluded all evidence proffered for the purpose of establishing the facts alleged in this separate defense of the answer. Judgment for the plaintiff followed and the defendant has appealed.

[172]

The appellant contends that section 171b of the Civil Code, which was adopted after the debt here in question was created, is but a codification of the law as it previously existed; that under sections 167 and 171 of that code a wife’s separate property is not liable for debts incurred in connection with the community property; that the husband only is liable on such debts; that since a wife’s separate property may not be subjected to the payment of a debt incurred in connection with the community property it follows that the discharge of the husband in bankruptcy from such an obligation is also a discharge of the wife; and that the proffered evidence would, therefore, have furnished a complete defense in this action.

The appellant relies particularly upon the case of

Bimrose

v.

Matthews,

78 Wash. 32 [138 Pac. 319], in which the court said: “When the husband was discharged in bankruptcy from the obligation of the contract, it must be of necessity follow that the wife was also discharged, because her separate property is not subject to the community debts.” That case differs from the one now before us in that it was a direct action upon a liability arising from contract and not an action upon a prior judgment.