Gund v. Parke

• Decision Date: 09 October 1896
• Citation: 46 P. 408,15 Wash. 393
• Parties: GUND v. PARKE (PARKE, INTERVENER.
• Court: Washington Supreme Court

46 P. 408

15 Wash. 393

GUND v. PARKE (PARKE, INTERVENER.

Supreme Court of Washington

October 9, 1896

Appeal from superior court, King county; R. Osborn, Judge.

Action by George J. Gund against James Parke to recover on a note. Fannie M. Parke, wife of defendant, intervened, asking that any judgment which should be rendered against defendant should declare that the debt was not a community debt, and that it should not be satisfied out of community property. The court overruled a demurrer to the complaint in intervention, gave judgment for plaintiff in accordance with the intervener's prayer, and plaintiff appeals. Modified.

Allen & Powell, for appellant.

White Munday & Fulton and Greene, Turner & Lewis, for respondents.

DUNBAR, J.

Plaintiff and appellant loaned to one F. L. Stinson the sum of $3,000 and took as collateral security therefor his promissory note for $3,500, payable to Stinson, and signed by Stinson and Parke and L. C. Gilman. This action was brought on the collateral note to collect a judgment against Parke only. Fannie M. Parke, wife of the defendant, filed a complaint in intervention, in which she alleged that she and defendant were the owners of community real property in King county Wash.; that the note sued on was a separate debt of the defendant, and not a community debt; and that a judgment rendered therein against her husband, the defendant, would be a cloud upon the community land. Her prayer was that any judgment that should be rendered against him should adjudge that the debt was not a community debt, and that it should not be satisfied out of the community property. To this complaint in intervention the plaintiff demurred on the ground that the same did not state facts sufficient to constitute a ground for intervention. The court overruled the demurrer. At the close of the evidence the court withdrew the case from the consideration of the jury, and directed a judgment to be entered in favor of the plaintiff against the defendant, and further directed that the judgment should adjudge that the debt was a separate debt of defendant, and that it was not to be satisfied out of the community property. Judgment was entered accordingly, and an appeal was taken from so much of the decree as adjudged that the debt was not a community debt, and that it should not be satisfied out of the community property.

It is urged by the appellant that the wife showed no right to intervene, because she had no interest in the matter in litigation; that the matter in litigation was the husband's indebtedness to the plaintiff; that the plaintiff was not seeking relief against the community property or its lands; that the question in litigation was not the question of how the husband's liability should be satisfied, but whether there was such a liability. It was held by this court in McDonough v. Craig, 10 Wash 239, 38 P. 1034, that in an action upon a negotiable promissory note executed by the husband alone for what was alleged to be a community debt the wife was a proper defendant, and upon a finding in favor of the defendant upon such issue he was entitled to have the debt adjudged as that of the community. This case overruled the rule of practice which had been announced theretofore by the court in Bank v. Scott, 6 Wash. 499, 33 P. 829, and 34 P. 434, and we think the logic of McDonough v. Craig would permit the intervention of the wife and the determination of the liability of the community property before judgment as well as after. The court in that case said: "This leaves for consideration only the question of practice as to the time when this prima facie presumption can properly be made conclusive. That the one having such a claim may at some time have this prima facie presumption made conclusive so evidently results from well-settled rules of practice that it will not be questioned; and, if...