Milisich v. Hillhouse

• Decision Date: 03 September 1924
• Docket Number: 2606.
• Citation: 228 P. 307,48 Nev. 166
• Parties: MILISICH v. HILLHOUSE, SHERIFF.
• Court: Nevada Supreme Court

228 P. 307

48 Nev. 166

MILISICH v. HILLHOUSE, SHERIFF.

No. 2606.

Supreme Court of Nevada

September 3, 1924

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by Thora J. Milisich against J. D. Hillhouse, as Sheriff of Washoe County. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

Mack & Green, of Reno, for appellant.

Cooke French & Stoddard, of Reno, for respondent.

COLEMAN J.

This is an appeal from a judgment in favor of the defendant in the action, and from an order denying a motion for a new trial. We will allude to the parties as plaintiff and defendant, as they were in the trial court.

The defendant, as sheriff, acting under a writ of attachment attached a Haynes automobile in an action to recover a money judgment against one Steve B. Milisich, the husband of the plaintiff, of whom we will speak as "Steve." This action was instituted to recover the possession of the car upon the theory that it was the separate property of the plaintiff. On the other hand, it is maintained that the car is community property.

With certain exceptions not involved in this case, it is provided by section 2156, Rev. Laws of Nevada 1912, that all property acquired after marriage by either husband or wife is community property. It is not contended that the car in question, or the consideration given for it, was acquired before the marriage of the parties mentioned. Hence we are brought to a consideration of whether the evidence in this case shows a transmutation of community property into the separate property of the plaintiff. In determining this case the trial court declined to consider as applicable certain well-established rules of law urged upon it by counsel for the plaintiff, and, while they are urged upon us at great length, we fail to see their application to the situation in hand, and will endeavor to state the principles of law which we think control, and which, in fact, were applied by the trial court.

It being conceded that the plaintiff had no separate property at the time of her marriage, and it not being contended that she acquired any by descent or devise or by gift, except as hereinafter stated, we come to consider briefly the facts, but before doing so we wish to lay down certain well-established principles of law which apply to the facts of the case. First, the presumption prevails that all property acquired by either spouse during coverture is community property; and, second, that it remains such until clearly shown to have been transmuted into the separate property of one of the spouses. Laws v. Ross, 44 Nev. 405, 194 P. 465; Barrett v. Franke, 46 Nev. 170, 208 P. 435.

The evidence shows that at the time the Milisiches were married Steve was engaged in business and had a personal account at the Reno National Bank, and that some time after the marriage he arranged matters so that his wife could draw upon that account. This arrangement continued during the period covered by the transactions involved. It also appears that there was a safety deposit box to which they both had access, for a considerable length of time, at least; that each had a savings account at some bank in Reno. About 1916 Steve purchased a Reo car. This was the first car acquired by the family. The plaintiff testified that Steve gave her this car, and that she traded it in for another Reo, paying the difference, and in 1920 traded in the second Reo for the Haynes car in question, paying a difference of $1,700 in cash. Plaintiff claims that the major portion of the cash she used in paying the difference in these trades was savings from money her husband gave her with which to run the house.

In considering the question as to whether or not the savings from the money advanced by Steve for household expenses was separate property, the trial court held that they were not, quoting from 5 R. C. L. p. 843, § 21, as follows:

"Money saved by the wife out of money given to her by her husband for household and other community expenses does not thereby become separate estate, but remains community property, liable for community debts."

This is the well-recognized rule. 31 C.J. p. 79, § 1171.

With the rules of law, which we have stated, in mind, let us briefly consider the evidence. Just here we may say that the circumstances are such that the important question in the case is one of fact merely, and, there being sufficient evidence to support the judgment, we would not be justified in reversing it. It may be observed that it appears from the opinion of the trial judge, which, pursuant to statute, is incorporated in the record, that he rejected the testimony of the Milisiches. Hence the main question for us to determine is: Did the trial court abuse its discretion in this particular?

The plaitniff was confronted with the necessity of overthrowing the presumption of law that the car was community property. This could not be done by mere naked statements that the car was a gift, nor that the money and the car, which were given as consideration for the car in question, were gifts, but it was necessary to present facts from which the conclusion could be reached that they were not community property. It is clear from a reading of the testimony of both of the Milisiches that they were desirous of establishing the claim of plaintiff. The trial judge filed a lengthy opinion, showing studious and careful consideration of the facts. Since the case must turn solely upon the sufficiency of the evidence to support the judgment, we might properly refrain from considering the evidence at all, and shall consider it but briefly.

The Milisiches contradict each other in their testimony and, in at least one instance, Mrs. Milisich contradicts herself. For instance, she testified at one time that Steve made her a present of the Reo first bought, and that she turned that in and got the second one, paying the difference in cash. At another time she testified that Steve made her a present of both the Reos. Steve testified that he bought both Reos, turning in the first one for the second, and paying the diference. Mrs. Milisich testified:

"Q. Who owned the Reo car? A. It was a gift to me from my husband.

Q. In what year? A. When the first 1918...