Gomez v. Scanlan

ground of misjoinder of plaintiffs, should have been sustained, for the reason that the right to recover damages by the wife is in the nature of a chose in action, is community property, and, like the damages when recovered, subject to the control, power and management of the husband; and hence, being community property, the husband is the only necessary and proper party plaintiff. While ordinarily the rule is that the wife is not a proper party in an action to recover community property, this class of cases forms an exception. The rule has been recognized in this state in many cases, of which the following are a few: Sheldon v. Steamship Uncle Sam, 18 Cal. 527 , [ 79 Am. Dec. 193 ]; Matthew v. Central Pacific R. R. Co., 63 Cal. 451 ; Tell v. Gibson, 66 Cal. 274 , [ 5 Pac. 223 ]; McKune v. Santa Clara Valley etc. Co., 110 Cal. 480 , [ 42 Pac. 980 ], The claim that after the death of the husband, the administratrix of the estate should not have been substituted, and that by such substitution there was an improper joinder of the parties plaintiff, is equally without merit. The husband having been a necessary and proper party to the action when it was commenced, his legal representative became such upon his death and the appointment of such legal representative. (Newton and Wife v. Hatton, 2 Ld. Raym. 1208; Schouler on Domestic Relations, 5th ed., sec. 77; Fordyce v. Dixon, 70 Tex. 694 , [ 8 S.W. 504 ].)

It is further urged that the complaint does not state facts sufficient to constitute a cause of action as against the defendants who are sureties, for the reason that it shows that the wrongful acts complained of were done by the constable in his official capacity. The case of Felonicher v. Stingley, 142 Cal. 630 , [ 76 Pac. 504 ], is relied on. In that case there was no allegation that the constable had any writ or order directing him to do anything, and the complaint did not state any facts showing or tending to show that the wrongs complained of were done by the constable while acting in his official capacity. It was said in the opinion: “The weight of authority and the rule in this state is that the officer and his sureties are responsible for every abuse of his official powers. When he has in his hands a valid writ, and under cover of the writ, claiming to act under it, he goes beyond it and commits a trespass, his sure

ties are liable. ’ ’ The facts alleged bring the case at bar within the above rule. The complaint alleges that the defendant Scanlan had in his hands a valid search-warrant, “purporting to authorize said defendant Scanlan to search the premises of the plaintiffs in said town for certain personal property claimed by said Scanlan to have been stolen; that acting in his official capacity as such constable, and pretending to be authorized so to do by such search-warrant, said defendant Scanlan did then and there maliciously and with force imprison the said plaintiff Magdalena Gomez, and deprive her of her liberty for the space of two hours; and while so imprisoned and deprived of her liberty said defendant Scanlan, pretending to be authorized so to do by such search-warrant, maliciously and by force and threats of violence, caused the clothing of said plaintiff to be removed from her body and searched, and her person exposed to the view of said defendant and another person present.” If the above allegations are not sufficient to show a liability on the sureties, it would be difficult to show such liability. When an officer performs an act in strict accordance with the directions of a valid writ, and in the line of his official duty, neither he nor his sureties are responsible. If he willfully performs such act without any valid process and outside his official duty, he alone is responsible in damages. If he has in his possession a valid writ or order, and, claiming and even believing that he is acting within the scope of such writ or order, performs'an illegal or unauthorized act as to the party against whom the writ or order runs, or as to a third party, then he is liable, and also his sureties to the extent of their bond. The condition of the defendant’s bond was that he would well, truly and faithfully perform the official duties required of him by law. He was not so faithfully performing his official duties when he did the acts set forth in the complaint.

The judgment is affirmed.

Harrison, P. J., and Hall, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 31, 1906, and a petition to have the caíase heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 1, 1906.