Adams v. Baker

• Court: Supreme Court of Nevada
• Citation: 55 P. 362,24 Nev. 375
• Docket Number: 1,540.
• Parties: ADAMS v. BAKER et ux.
• Decision Date: 21 December 1898

55 P. 362

24 Nev. 375

ADAMS v. BAKER et ux.

No. 1,540.

Supreme Court of Nevada

December 21, 1898

Appeal from district court, Ormsby county; C. E. Mack, Judge.

Action by F. B. Adams against Archer Baker and wife. From an order denying a motion to discharge the judgment for costs obtained by the wife, plaintiff appeals. Reversed.

Trenmor Coffin, for appellant.

Alfred Chartz, for respondents.

BELKNAP C.J.

In a suit for the recovery of their homestead, Mrs. Baker recovered judgment for her costs, taxed at $83.65, but judgment was rendered against her husband for $938 and costs. Motion was made by plaintiff to discharge the larger judgment, pro tanto, by the smaller. The motion was supported by an affidavit showing that the defendants were, and had been for many years, husband and wife, that the judgment standing in Mrs. Baker's name is community property acquired by their joint efforts since marriage, and "that in so far as said costs have been paid by defendants, or either of them, they were paid out of the money earned, obtained, or accumulated by defendants since their said marriage." No showing to the contrary was made. The motion was denied. Plaintiff appeals.

The act defining the rights of husband and wife, approved March 10 1873, provides:

"Section 1. All property of the wife owned by her before marriage and that acquired by her afterwards by gift, bequest, devise or descent with the rents, issues and profits thereof, is her separate property, and all property of the husband owned by him before marriage, and that acquired by him afterwards by gift. bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.

"Sec. 2. All other property acquired after marriage, by either husband or wife, or both, *** is community property."

"Sec. 6. The husband has the entire management and control of the community property, with the like absolute power of disposition thereof, except as herein provided or of his own separate estate."

It is plain that under these provisions of law, and upon the facts established, the offset, pro tanto, should have been allowed. In support of the order it is said, first, that the parties are not the same, and for this reason, the law of set-off does not apply; and, second, it is claimed that Mrs. Baker earned her judgment for her costs, and under section 13 of the above-mentioned law "the earnings of the wife are not liable...