Larson v. Larson
Before: Kerrigan
Synopsis
Appeal Under New Method—Absence of Notice of Entry of Judgment—Time for Appeal—Motion to Dismiss Denied.—Where an appeal is taken under sections 941a and 941b of the Code of Civil Procedure, and no notice of the entry of the judgment has been given, and the appeal was taken within six months from such entry, it was taken and perfected in season to permit a consideration and review of the evidence, or for any other purpose; and a motion to dismiss such an appeal must be denied.
Id.—Date of Entry of Judgment of Nonsuit Specified in Notice of Appeal—Preliminary Order.—Where a preliminary order of non-suit may be considered as a mere memorandum affording data from which the final judgment of nonsuit might be drafted and entered as of the date specified in the notice of appeal, it is held that the date of the judgment so specified was the proper one from which to compute the time for appeal. (On petition for rehearing.)
Id.—Supposition of Date of Preliminary Order as Correct.—Even if the date of the preliminary order should be taken as the correct date, the appeal would still be taken in time; and any error in the notice of appeal existing upon such supposition could not mislead since such notice identified the order appealed from with reasonable certainty, which is all that is required, and any error therein should be disregarded. (On petition for rehearing.)
Id.—Judgment of Nonsuit in Claim and Delivery—Action by Widow Against Estate of Deceased' Husband—■ Separate Property—• Error.—In an action by a widow in claim and delivery against the administrator of the estate of her deceased husband to recover furniture, as her separate property, in which it is proved by her testimony that such furniture was purchased by her with funds earned by her in a business conducted by her as her separate property, with the husband’s consent that it should be her own, without interference or participation therein by the husband, it was error to grant a judgment of nonsuit against her.
Id.—Effect of Motion for Nonsuit.—A motion for a nonsuit admits the truth of all evidence in favor of the plaintiff, together with every inference or presumption legitimately dedueible therefrom. Contradictory evidence is to be disregarded; and upon such a motion all evidence is to be construed most strongly against the defendant. If there is any substantial evidence tending to prove the facts neeessary to make out a case, the plaintiff is entitled to a judgment on the merits, and the motion should be denied.
Id.—Husband and Wife—Earnings of Wife—Community Property— Relinquishment by Husband—Separate Property.—The earnings of the wife during marriage and while living with her husband, as community property, are subject to the control of the husband; but the husband may relinquish to the wife his interest in her earnings, and when he does so, such earnings become the separate property of the wife.
Opinion — Kerrigan
KERRIGAN, J.
This is an appeal from a judgment of nonsuit entered in an action of claim and delivery.
Plaintiff is the widow of Alfred Larson, deceased, and brought suit against the administrator of her husband’s estate to recover possession of certain personal property, consisting generally of household furniture, which she claims as her separate property.
Upon the close of plaintiff’s case defendant moved for a nonsuit, upon the ground that the evidence introduced failed to sustain the allegations of the complaint as to the separate character of the property. After due consideration this motion was on September 3, 1909, granted. Thereafter, on September 22, 1909, a judgment of nonsuit was entered in the minutes of the court, pursuant to the provisions of section 581 of the Code of Civil Procedure.
[533]
Before considering the question of the correctness of the court’s ruling on the motion for nonsuit, it is necessary to dispose of a motion made by respondent to dismiss the appeal.
The judgment was entered by the clerk on September 22d, and the appeal therefrom was taken on November 27th following. Respondent contends that as the appeal was perfected more than sixty days after the entry of the judgment, the evidence cannot be reviewed, and that the appeal must be dismissed. This motion would probably have to be granted if the appeal were taken under section 939 of the Code of Civil Procedure. As a matter of fact, however, the appeal is taken under sections 941a and 941b of that code; and as no notice of the entry of judgment was given, and the appeal was taken within six months from such entry, it was taken and perfected in season to permit a consideration and review of the evidence, or for any other purpose.
This brings us to the question, Was the court warranted in granting the motion for nonsuit
1
To answer this query it will be necessary to review briefly the evidence.
The plaintiff, as a witness in her own behalf, testified that for a long period of time she had conducted, in her own name, the business of selling leases of lodging-houses and the like; that the money thus earned was deposited in banks to her credit; that she had exclusive and undisturbed control of said business and its earnings, free from any interference or participation of her husband; that the furniture in question was purchased by her with funds thus earned; that on account of her illness at the time of this purchase her husband attended to the details of the transaction, but that the checks given in payment thereof were drawn by her on funds standing in her own name in the bank, and representing her own earnings in said business, and that the receipts for the several payments were taken by her husband for her and in her name. As a circumstance showing her husband’s recognition of the fact that he acted merely as her agent in the matter, plaintiff testified that upon the completion of the transaction, in handing her a receipt in full from the vendor of the furniture, her husband asked if she did not think he had gotten the furniture for her cheap enough. She also testified that prior to going to Portland, where it appears that she and
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