Street v. Bertolone

[752]

LENNON, J.

In this action for an accounting and the delivery of personal property, the demurrer to the complaint was sustained with leave to amend. The plaintiff having failed to amend, judgment was thereupon entered in favor of defendants and the plaintiff has appealed therefrom. The complaint alleges, in substance, that, pursuant to petition duly filed, defendant G. Bertolone was adjudicated a bankrupt on the first day of July, 1922, by the district court of the United States; that plaintiff is the duly appointed, qualified, and acting trustee of the estate of said bankrupt; that the total liabilities of said bankrupt’s estate amount to $9,000, due unsecured creditors; that the total amount of the assets of said estate, with the exception of the claim herein sued upon, equals $2,125 when reduced to cash; that defendants G. Bertolone and Clara Bertolone were married in 1902 and ever since that time have been and now are living together as husband and wife. The complaint further alleges, and therein lies the cause of the present controversy, that the defendant Clara Bertolone is now in the possession or control of certain personal property which was “acquired by the defendant, Clara Bertolone, as the result of her earnings from her personal service during her said marriage with the defendant, G. Bertolone, and no. part of said personal property was acquired by defendant, Clara Bertolone, by gift, devise, bequest or descent.” There follows an allegation of demand and refusal and a prayer for an accounting and the delivery of the property. The demurrer was sustained upon the ground that it appeared upon the face of the complaint that the property sued for on behalf of the creditors of the husband consisted of the earnings of the wife, and that section 168 of the Civil Code provides that “The earnings of the wife are not liable for the debts of the husband.” The correctness of this ruling is the only point presented on this appeal. Appellant advances four propositions in support of his position: (1) that the section of the code above quoted merely exempts the earnings of the wife from liability for the

separate

debts of the husband; (2) earnings of the wife while living with her husband are community property; (3) debts contracted during the marriage are presumed to be community debts, and (4) it appears from the com