Shaw v. Greer

• Decision Date: 01 June 1948
• Docket Number: 4996
• Citation: 194 P.2d 430,67 Ariz. 223
• Parties: SHAW v. GREER et al
• Court: Arizona Supreme Court

194 P.2d 430

67 Ariz. 223

SHAW v. GREER et al

No. 4996

Supreme Court of Arizona

June 1, 1948

Appeal from Superior Court, Navajo County; C. C. Faires, Judge.

Action by L. L. Shaw against Dodd L. Greer and others to recover damages on ground that defendants wrongfully conspired to bring about plaintiff's unlawful arrest and imprisonment for purpose of depriving him of custody of his minor child wherein the plaintiff was awarded a judgment. Thereafter the plaintiff sued out certain writs of garnishment against Navajo County and the City of Winslow as employers of the defendants. From an order quashing the writs of garnishment that impounded moneys owing to certain of the defendants the plaintiff appeals.

Affirmed.

Urban R. Miller, of Williams, for appellant.

Dodd L Greer, of Holbrook, for appellees.

LaPrade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

LaPrade, Justice.

This appeal is prosecuted, by the plaintiff below, from an order of the superior court of Navajo County quashing certain writs of garnishment theretofore sued out against Navajo County and the City of Winslow, and releasing funds owed to defendant Ben Pearson, Navajo County deputy sheriff, and defendant A. T. Hartley, chief of police of the City of Winslow, impounded under the writs. The reason for the order as set forth by the court in its minute entry was "* * * that community property is not liable for the husband's torts as public officers which could not and did not benefit the community." Plaintiff in suing out the writs was attempting to effect a partial collection of an indebtedness owed to him by defendants Pearson and Hartley. The writs were secured in the same cause of action which plaintiff had theretofore successfully prosecuted to judgment against Hartley, Pearson, Dodd L. Greer, and Nick Paul, which judgment was in the sum of $ 800.

Plaintiff's cause of action resulting in the judgment alleged that William H. Galloway and Nick Paul were police officers of the City of Winslow; that A. T. Hartley was chief of police of the City of Winslow; that Dodd L. Greer was county attorney of Navajo County; that Cecil McCormick was sheriff of Navajo County; and that Ben Pearson was a deputy sheriff of Navajo County. The complaint then charged that these officers "wrongfully, unlawfully, oppressively, fraudulently, wantonly, and maliciously" entered into a combination and conspiracy to bring about plaintiff's unlawful arrest and imprisonment for the purpose of depriving him of the custody of his minor child; that he was forcibly arrested by one of the defendants on a pretended and false charge of having committed a misdemeanor, not committed in the presence of any of the defendants, and without warrant; that he was unlawfully imprisoned by two of the defendants, and on two occasions assaulted by the defendant Nick Paul for declining to disclose the whereabouts of his child; that the mother of the child, from whom plaintiff is divorced, was in the territory of Alaska; that during his incarceration in jail the defendants procured from the juvenile division of the superior court an order directing the sheriff to take the child into custody for the reason and upon the ground that the child was neglected, dependent, and in need of the protection of the court; that defendants conducted a public search for the child and publicly advertised that the child was sought for the custody of the juvenile court for the reason that plaintiff was confined in jail; and that plaintiff was greatly humiliated and suffered in his business. All of the conduct referred to in the complaint was alleged to have been in combination, in furtherance of the asserted conspiracy, and for the purpose of wantonly, maliciously, fraudulently, and unlawfully depriving plaintiff of the custody of his child.

The sureties on the official bonds of all the officers were joined as defendants. At the instance of the sureties the complaint as to them was dismissed on the ground that the complaint on its face showed that the acts complained of were not official acts of the officers within the rule laid down in Miles v. Wright, 22 Ariz. 73, 194 P. 88, 12 A.L.R. 970. No appeal was taken from this ruling and the correctness of the ruling and the holding in the Miles case is not here for re-examination, though two of the trial judges who granted the motions of the sureties expressed the view that the rule in the Miles case stated a very restricted view on the application of the law relating to the liability of sureties on bonds of public officers.

The motions to quash the writs of garnishment were based upon the ground that the record disclosed that the debt owing from defendants to plaintiff was a separate debt of the several defendants; that the judgment debt was not a community indebtedness; and that the amounts garnisheed represented salaries earned by defendants at a time when they were married, were thus community property, and could not be subjected to the payment of the separate debts of defendants. Under our system of community property the earnings of either of the spouses, while living together, are community property. La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426, Ann.Cas.1915B, 70; Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965. In Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175, an analysis of our community property statutes was made and it was decided that community property is liable only for community debts and not for the separate obligations of either of the spouses. Followed in Payne v. Williams, 47 Ariz. 396, 56 P.2d 186.

With this determination that the community property is not liable for the separate debts of either of the spouses, with which principle we are still in accord, it becomes necessary in the instant case to determine the character of the indebtedness owing from the defendants to the plaintiff. This court has repeatedly made the observation that our community property law is more like that of the State of Washington than of any of the other community property states. See Cosper v. Valley Bank, supra; Donn v. Kunz, supra; and McFadden v. Watson, 51 Ariz. 110, 74 P.2d 1181. Our court has repeatedly resorted to the decisions of the Supreme Court of Washington for enlightenment in construing our community property law where comparable statutory provisions have been there construed. The rule in Washington seems to be that community property is not liable for the tortious acts of an individual member of the community as a public officer, with one possible exception (notary public -- see Kangley v. Rogers, 85 Wash. 250, 147 P. 898).

In our recent case of Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (decided since the order herein appealed from was made), we held that a joint and several judgment against husband and wife growing out of a tort committed by the husband while attempting to perform his duties as a state highway patrolman (a public officer -- see State v. Hendricks, 66 Ariz. 235, 186 P.2d 943) was erroneous insofar as it attempted to subject the separate property of the wife to the judgment. The judgment was ordered modified so as to subject the separate property of the husband and the community property of the husband and wife to the judgment. The main contention on the appeal was that the judgment was in error insofar as it subjected the separate property of the wife to payment of the judgment for the husband's tort committed in the absence of the wife and not while acting as her agent. Both parties took it for granted that the community was liable for the judgment and so admitted in their briefs. They apparently were unaware of the Washington cases -- as was the court. The proposition was, therefore, not seriously considered by us and is really a matter of first impression regardless of the pronouncement in the Ruth case.

The author of an annotation in 12 A.L.R. 837, following the case of Kies v. Wilkinson, 114 Wash. 89, 194 P. 582, 12 A.L.R. 833, analyzes the Washington cases as follows:

"This doctrine seemingly was first laid down in Brotton v Langert, 1890, 1 Wash. 73, 23 P. 688, which, as stated in the Kies case, held that community property could not be subjected to a judgment against the husband, who, as a constable, had wrongfully sold certain property on execution. And in Day v. Henry, 1914, 81 Wash. 61, 142 P. 439 a similar conclusion was reached where community property was sought to be held liable for a judgment arising from a wrongful levy made by a member of the community while serving as sheriff. And again in Bice v. Brown, 1917, 98 Wash. 416, 167 P. 1097, 1100,...