Moseley v. Heney
Before: Myrick
Synopsis
Pleading—Action against Executor—Allegation oe Representative Character.—Where the complaint in an action against an executor contains several causes of action separately stated, an allegation showing the defendant’s representative character need not be contained in each count. One such allegation at the conclusion of the complaint is sufficient.
Ib.—Wife’s Earnings—Husband Must Sue for—Evidence—Wife as Witness.—The husband is the proper plaintiff in an action to recover the proceeds of his wife’s labor, in the absence of an agreement between them making such proceeds her separate property. In such an action against the personal representative of the deceased debtor, the wife is a competent •witness for her husband.
Myrick, J. Action to recover an alleged indebtedness due from defendant’s testator. Causes of action are separately stated in the complaint. Following these allegations is an allegation of the death of the testator, and of the proceedings in probate. Objection is made that the allegations as to the death and the proceedings in probate are not separately stated in each count. The point is not well taken. The allegations may be considered as referring to either and both of the counts.
The subject of the action was community property ; no such agreement existed between plaintiff and his wife as made the proceeds of her labor her separate property; therefore, the husband was the proper plaintiff. Such being the case, the wife was not incompetent as a witness, under the code.
We think the findings were sustained by the evidence; we see no error. On the contrary, there is no merit in the appeal.
Judgment affirmed.
Sharpstein, J. and Thornton, J., concurred,.
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