Rahr Malting Co. v. Koch Brewing Co.

McCOMB, J., pro tem. This is a purported appeal by third party claimant, appellant herein, from the judgment of the trial court based on findings that a fund held in a bank by virtue of a writ of attachment was community property of appellant and her husband, defendant in the action, and not appellant’s separate property. The hearing was held [459]pursuant to the provisions of section 689 of the Code of Civil Procedure, appellant having alleged in her claim that the fund was her separate property.

Appellant relies for reversal of the judgment solely on the following propositions:

First: The evidence is insufficient to support the findings of fact.

Second: The trial court erred in overruling appellant’s objection to her husband’s testifying at the hearing held in accordance with the provisions of section 689 of the Code of Civil Procedure, in vieiv of the rule stated in section 1881, subsection 1, of the same code.

As to appellant’s first proposition, the burden of proof was upon third party claimant, since she had the affirmative of the issue. (Scott v. Wood, 81 Cal. 398, 402 [22 Pac. 871].) This she attempted to sustain after being sworn, by testifying, the fund in question was acquired subsequent to her marriage with the defendant; also as to various sources of origin of the fund, which tended to show the money was her separate property. Much of appellant’s testimony at the hearing was in conflict with testimony which she had previously given at the taking of her deposition. It was for the trial court to determine how far, if at all, this circumstance affected the weight and value of her testimony. (Thompson v. Davis, 172 Cal. 491, 494 [157 Pac. 595].)

Evidence that the fund was acquired subsequent to marriage gave rise to the presumption that it was community property. (Sec. 164, Civ. Code; Stafford v. Martinoni, 192 Cal. 724, 738 [221 Pac. 919].) Such presumption is itself evidence. (Moore v. Gould, 151 Cal. 723, 726 [91 Pac. 616] ; Stafford v. Martinoni, supra.) The trial court was not bound to believe the interested witness as against the presumption. (Adams v. Hopkins, 144 Cal. 19, 36 [77 Pac. 712].) This rule is very clearly stated by our Supreme Court in Sarraille v. Calmon, 142 Cal. 651 [76 Pac. 497], wherein it was held that declarations of witnesses to the effect that certain notes had been paid considered in connection with the presumption of nonpayment, arising from possession of uncanceled notes, produced a conflict in evidence for determination by the trial court. Mr. Commissioner Chipman says at page 655: