Gomez v. Scanlan

SLOSS, J.

This is an action to recover damages for false imprisonment of the plaintiff Magdalena Gomez by the defendant Scanlan. Scanlan was constable of the eleventh

[530]

township of the county of Contra Costa, and his codefendants were sureties on his official bond. After the commencement of the action, John H. Gomez, who, as husband of Magdalena, had joined as plaintiff, died. His wife obtained letters of administration of his estate, and, as administratrix, was substituted for the decedent. Individually, and as such administratrix, she recovered judgment for two thousand dollars. The defendants appeal from the judgment and from an order denying their motion for a new trial.

1. The death of John TI. Gomez and the appointment of Magdalena Gomez as administratrix of his estate, were made to appear by means of a supplemental complaint’ The defendants demurred to this pleading on the ground of misjoinder of parties plaintiff, and, the demurrer having been overruled, set up the alleged misjoinder in their answer. It is contended that the action was, originally, one to recover community property, and, as such, should have been brought by the husband alone. In such action the wife, it is claimed, cannot properly be joined as plaintiff either with the husband or with his personal representative. This position is fully refuted by a reference to the authorities on the point. In

McKune

v.

Santa Clara V. M. & L. Co.,

110 Cal. 481, [42 Pac. 980], the court said that “though the right of action and the damages recovered are community property, this form of action is an exception to the rule that the husband has control of the community property and may sue or be sued alone where it is concerned. The wife is a necessary party.” The doctrine so declared had been established as the law of this state by a long line of prior decisions.

(Sheldon

v.

Steamer Uncle Sam,

18 Cal. 526, [79 Am. Dec. 193];