Johnston v. St. Sure

NOURSE, J.

This is an original proceeding in

mandamus

to require the respondent, as judge of the superior court, to direct Carrie E. Bridge to answer questions propounded to

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her in the taking of her deposition in a proceeding pending in that court. The sole question at issue is whether the said witness, being jointly sued with her husband as' a party defendant in said action, may be interrogated without his consent. The action is one to quiet title to an undivided one-half interest in certain real property situated in the county of Alameda, for an accounting of the rents, issues, and profits thereof, and to declare that the defendant Carrie B. Bridge, in whom the record title stands, holds such undivided one-half interest therein in trust for the plaintiff. Some fifteen other persons were joined as defendants, some of whom it is said have been served and appeared in the action. The defendants Carrie E. Bridge and H. S. Bridge, her husband, filed their joint answer verified by the oath of said H. S. Bridge, in which they expressly denied the allegations of the complaint that said Carrie E. Bridge has no interest, right, title, or claim in and to said real property and that she holds the naked legal title thereto to the use or benefit of the defendant H. S. Bridge, or in trust for him. They also expressly denied that at any of the times mentioned in plaintiff’s complaint the defendant H. S. Bridge was the owner of an undivided interest in the property, and expressly alleged that the defendant Carrie E. Bridge at all the times in plaintiff’s complaint referred to “was and she now is the owner in fee of all the real property in plaintiff’s complaint referred to and described, and of every interest therein, except those portions thereof which have been sold or contracted to be sold by her to certain persons named in this answer.”

By this answer the defendant H. S. Bridge disclaimed all interest in the property involved in the action and made himself a nominal rather than a real party in interest. His wife joined with him in this disclaimer.

When she was cited to appear before a notary for the purpose of having her deposition taken by plaintiff she refused to answer any questions propounded to her upon the ground that she was an incompetent witness under the provisions of subdivision 1, section 1881, of the Code of Civil Procedure. The provisions of this section, so far as material hereto, read; “A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either,