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District Court of Appeal, First District, Division 2, California.


Civ. 11853.

Decided: November 28, 1941

Eugene H. O'Donnell, Julien R. Bauer, and Albert A. Axelrod, all of San Francisco, for appellant. C. H. White and Keyes & Erskine, all of San Francisco (Leslie L. Roos, of San Francisco, of counsel), for respondent. Morrison, Hohfeld, Foerster, Shuman & Clark, of San Francisco, amici curiæ for California Bankers Ass'n.

Plaintiff sued to recover a deficiency judgment upon a promissory note after the foreclosure of a deed of trust. The defendant Axelrod had executed the note as an accommodation maker for the benefit of defendant Rosenthal. The wife of the maker intervened seeking a declaration that their community property could not be subjected to payment of the obligation since it had been incurred by her husband solely as an accommodation maker and without her knowledge and consent. The trial court found that no evidence was offered as to whether the intervener and her husband own or owned any community property, and that no evidence was offered as to whether the plaintiff intended or threatened to execute upon any community property to satisfy the judgment. For these reasons the trial court found that the intervener had no interest in the proceedings.

The appeal is taken by the intervener upon the judgment roll. Under these circumstances we must assume that the evidence fully supports the findings. If the parties do not own any community property the question whether community property is subject to the payment of the debts of the husband is purely academic. Under section 387 of the Code of Civil Procedure an intervener must have “an interest in the matter in litigation, or in the success of either of the parties, or an interest against both”. The interest in the matter in litigation, says the Supreme Court in La Mesa, etc., Irr. Dist. v. Halley, 195 Cal. 739, 741, 235 P. 999, 1000, “must be of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. Elliott v. Superior Court, 168 Cal. [727], 734, 145 P. 101. The interest must be direct and not consequential, and must be such an interest as is proper to be determined in the proceeding in which the intervention is sought.”

The finding of the trial court that the intervener had no interest in the proceedings follows the finding that she offered no evidence to prove an interest and conforms to the complaint in intervention which fails to plead an interest. The question then whether community property is liable for the separate debts of the husband becomes merely an abstract question of law and the appellant has failed to show any error in the proceedings justifying a reversal of the judgment. 2 Cal.Jur., p. 125.

If this view should be deemed to be too technical there is another reason why the judgment should be affirmed––the complaint fails to state a cause for intervention because the community property is liable for such private debts of the husband. This was the ruling in Grolemund v. Cafferata et al., 17 Cal.2d 679, 688, 111 P.2d 641, 645, in a decision entered after the briefs in this case were filed. In that case the question presented was whether community property was liable for satisfaction of a judgment against the husband alone for his individual tort. In holding that it was liable the court said: “A complete reading of all our code sections on community property clearly demonstrates that our community system is based upon the principle that all debts which are not specifically made the obligation of the wife are grouped together as the obligations of the husband and the community property (with the single exception of the wife's earnings, which are exempted from certain types of debt, Civ.Code, sec. 168)”, and again (17 Cal.2d at page 689, 111 P.2d at page 646), “Since it is our opinion that the enactment of section 161a of the Civil Code, defining the interests of the spouses in community property, has not altered the situation with respect to the wife's interest remaining subject to the husband's power of management and control, all community property, whether acquired prior to or subsequent to July 29, 1927 (the effective date of this statute), is liable for satisfaction of the husband's debts.”

Whether the question is moot for failure to prove a triable issue, or whether it has been properly raised is immaterial, since under either view the intervener cannot prevail.

The judgment is affirmed.

NOURSE, Presiding Judge.

STURTEVANT and SPENCE, JJ., concurred.

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