Gubin v. Superior Court

THOMPSON (IRA F.), J.

The petitioner seeks the writ, of mandate to compel the respondent court to receive testimony. Simply stated, the proposition presented to us is this: The petitioner here sued her husband in the respondent court for divorce and incidentally for a division of the community property. She joined' the defendant’s brother, Oscar Gubin and his wife, Bertha Gubin, as defendants alleging that, the two latter held the record title to property, which in truth and in fact belonged to herself and her husband as community property. After Bertha Gubin was called to the stand under section 2055 of the Code of Civil Procedure, her counsel objected to plaintiff’s counsel interrogating her with respect to the sources from which the money was secured with which the property was purchased on the ground that by subdivision 1 of section 1881 of the Code of Civil Procedure neither a wife nor a husband may be examined for or against the other without the other’s consent. This objection was sustained, the trial judge indicating that he would also uphold counsel’s contention that the husband could not be examined for or against the wife without her consent. It is this line of testimony which the petitioner asks us to compel the trial judge to receive. This we must decline to do, not on the ground that the testimony is not receivable, which point we expressly disclaim any intention of passing upon in this proceeding, but for the reason that we cannot make use of this high prerogative writ for the purpose here sought.

[333]

We are fully aware of the confident reliance placed by petitioner on the cases of

Johnston

v.

St. Sure,

50 Cal. App. 736 [195 Pac. 947], and

Wissman

v.

Gabaniss,

34 Cal. App. 487 [168 Pac. 150], but we think those authorities fail to hit the mark. In neither of the cited instances was the appellate tribunal called upon to direct a trial court during the trial of the action what evidence it should receive. In both cases the deposition of the spouse was being taken and the writ was utilized for the purpose of directing the judge taking the deposition to receive the testimony. That is quite different from attempting to prevent the court from committing error during the progress of a trial. We adhere to the opinion written by us in