Thomas v. Desmond

McKee, J. Upon a showing made by the defendant, the default entered against him was set aside by the court, with leave to answer. Instead of filing an answer, the defendant demurred and the court sustained the demurrer, with leave to the plaintiff to amend her complaint; but she declined to amend and judgment final was entered against her, and from the judgment and the order setting aside the default the plaintiff appealed.

[427]The action was brought to recover damages for an alleged wrongful seizure of personal property. It is alleged in the complaint that the plaintiff was a married Aroman and the Avife of "William A. Thomas; and it may be gathered from the complaint that she had possession of the property, and that the defendant, as the sheriff of the city and county of San Francisco, took it from her possession by process issued in the suit of Amos "Williams against William A. Thomas, her husband, and converted it to his own use. But that statement does not constitute a cause of action in her favor. It is only where property taken from a married woman belongs to her as her separate property that she is considered in IaAV as a femme sole and entitled to sue for its recovery or conversion. And in such a suit, the pleading in the action should disclose the fact that the property was her separate property. That is a fact Avhich must be averred and proved. The complaint does not shoAV, by distinct affirmative averments, that the title to the property was in the plaintiff as her separate property, or that she was possessed of it as of her separate property as a sole trader or otherwise. On the contrary, the complaint does shoAV, by recitals of evidential facts, that the property was the separate property of the husband, but, having become intemperate and dissolute, he had spent all his money and run in debt, and failed to support his Avife, and she in consequence of the intemperate and dissolute habits of her husband, acting under the advice of counsel, asserted her claim over all his property, took possession of it and invested it in the business of letting furnished rooms, Avith or Avithout board, in the city of San Francisco—a business AArliich she was authorized to carry on as a sole trader by a decree of the Superior Court of said city and county rendered December 21, 1880.

These recitals are insufficient as a statement of her right to the property. They are not a statement of the material and ultimate facts—facts as distinguished from argument, from hypothesis, and from evidence—Avhich is .required by the Code. (§ 426, Code Civ. Proc; Green v. Palmer, 15 Cal. 410; Piercy v. Sabin, 10 Cal. 27; Grewell v. Walden, 23 Cal. 165; Moore v. Murdock, 26 Cal. 514; Miles v. McDermott, 31 Cal. 271.) The complaint was, therefore, demurrable.