Gomez v. Scanlan

COOPER, J.

This action was brought to recover damages, in the sum of $500, against defendant Seanlan, as constable, and the other defendants as sureties on his official bond, for false imprisonment. The ease was tried before a jury, and a verdict rendered for plaintiff in the sum of $500. This appeal is from the judgment on the judgment-roll without a bill of exceptions.

The action was brought by John H. Gomez and Magdalena Gomez, his wife, for false imprisonment and wrongs committed by defendant Seanlan on the person of the wife. Defendants claim that their demurrer, which was on the

[580]

ground of misjoinder of plaintiffs, should have been sustained, for the reason that the right to recover damages by the wife is in the nature of a chose in action, is community property, and, like the damages when recovered, subject to the control, power and management of the husband; and hence, being community property, the husband is the only necessary and proper party plaintiff. While ordinarily the rule is that the wife is not a proper party in an action to recover community property, this class of cases forms an exception. The rule has been recognized in this state in many cases, of which the following are a few:

Sheldon

v.

Steamship Uncle Sam,

18 Cal. 527, [79 Am. Dec. 193];

Matthew

v.

Central Pacific R. R. Co.,

63 Cal. 451;

Tell

v.

Gibson,

66 Cal. 274, [5 Pac. 223];

McKune

v.

Santa Clara Valley etc. Co.,

110 Cal. 480, [42 Pac. 980], The claim that after the death of the husband, the administratrix of the estate should not have been substituted, and that by such substitution there was an improper joinder of the parties plaintiff, is equally without merit. The husband having been a necessary and proper party to the action when it was commenced, his legal representative became such upon his death and the appointment of such legal representative.