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


Civ. 13326.

Decided: November 28, 1941

James B. Fredericks, of Los Angeles, for appellants. Frederick M. Kraft, of Los Angeles, for respondents.

This is an action in equity by judgment creditors to impress their judgment as a lien upon two items of personal property on the theory it belonged to the debtor, W. W. Swan, even though title thereto stood respectively in the names of his wife and daughter. From a judgment in favor of the creditors the wife and daughter have appealed.

The complaint is in five counts. The court found for the appellants on the first three counts and against them on the last two counts. Except for the adoption therein of the allegations of the first count, all of which were found by the trial court to be untrue, the fourth count contains but a single paragraph which merely alleges that the wife and daughter acquired from the debtor Swan, without consideration, the respective properties standing in their names, in trust for him at a time when he was insolvent. Likewise the fifth count, except for its adoption of the allegations of the first count, sets forth but a single paragraph wherein it is averred that the wife and daughter acquired from the debtor, without consideration, the respective properties standing in their names, and “by reason thereof” the wife and daughter each held their respective properties upon a constructive trust, with the debtor Swan as the beneficiary thereof.

It is undisputed that the plaintiffs on April 6, 1939, recovered a judgment against W. W. Swan in the principal sum of $3,000, interest and costs, and that it is unsatisfied.

Without detailing the findings, it will suffice to say that the court found that at the time the creditors procured their judgment against Swan he was the owner and in possession of a 75 per cent interest in an Oldsmobile and a deposit account in a bank in the sum of $2,545.47, the two items of personal property involved, even though title as to each was of record in the wife, because––so the court found––she held the same in trust for the husband. The court further found that the wife had withdrawn the deposit account and transferred, without consideration, $2,500 thereof to the daughter, who had purchased therewith postal savings bonds, and accordingly it found she should be deemed to hold the bonds in trust for her father. The court additionally found that the Oldsmobile was transferred by the husband to the wife on June 1, 1937, and that the bank account was the resultant of various amounts of money transferred by the husband to the wife in the period between March 23, 1936, and April 22, 1940. Upon the findings as made the court adjudged that the judgment creditors had a lien on the Oldsmobile and the postal savings bonds for the amount of their judgment of $3,000 with interest and costs.

The errors assigned are (1) that the complaint does not state a cause of action and that it is insufficient upon which to base a judgment, (2) that the evidence was insufficient to sustain the findings and (3) that the findings do not support the judgment.

We are not entirely clear from the brief comments in the trial record upon what theory the court reached the conclusion that the property involved was held upon a trust for the husband. However, as the court did not find, as plaintiffs alleged, that the husband was insolvent, or was made insolvent by any of the transfers, or that there was any intent to defraud creditors, it seems apparent that the court was of the view that the property was originally community property and so continued despite any transfers thereof and regardless of the names in which it was held. This view derives support from the statement made to the court by counsel for respondent upon the appellants' motion for nonsuit, the court's brief comment in response thereto in denying the motion, and from counsel for respondents' “counter statement” in his brief of the question involved on appeal. Accordingly, it seems plain that we have before us no question involving the credibility of witnesses nor the weight that should be ascribed to the evidence, which, so far as it is material, is uncontradicted. While counsel for respondents devotes a goodly portion of his brief to his disbelief of the defendants' testimony, yet we may observe that if there had been a finding that the creditors had been defrauded there would have had to be a reversal on this record. Accordingly, the controlling issue here is one of law, i. e., whether the property was community property of the husband and wife or whether it had achieved the status of separate property either before the obligation was incurred by the husband to the respondents or before the judgment was rendered.

The bank account in question was opened by the wife in her own name by an initial deposit of $600, derived from another account standing in her name. Her husband had no right to check on it. He never claimed any such right or any part of the account. Subsequent to 1920 the wife acquired more than $12,000 in cash by way of gift, which was her separate estate. During a considerable portion of time after the bank holiday in 1933 the wife kept currency in her safety deposit box, largely in excess of $3,000. The box was in her name and the husband had no access to it. The only money which belonged originally to the husband and went into his wife's bank account was the sum of $623.50, and none of this went into the account after March 2, 1937, which was eighteen months prior to the time the husband first became obligated to the plaintiffs. By section 15a of the Bank Code, St.1929, p. 444, a bank account of a wife is her separate property, and it may be reached by her husband or his creditors only where by evidence it is shown she acquired it through fraud or through an agreement to hold it in trust, or where as a matter of law a trust should be raised against her because of her conduct against the husband. See De Hart v. Allen, 43 Cal.App.2d 479, 111 P.2d 342. If the husband cannot recover on any theory of trust the creditor of the husband may not either, unless the creditor additionally can show a fraud perpetrated upon him. There was no such showing here. Moreover, the husband testified he had no interest in the account or in the postal savings bonds––purchased with part of the proceeds of the account and held by the daughter. Title to the bonds should have been decreed to be in the daughter.

It was shown that the wife had the so–called “pink slip” to the Oldsmobile more than a year prior to the time the obligation was incurred by the husband to the plaintiffs. His rights and those of his creditors are here essentially the same as to the bank account. A pink slip to a car in the name of a wife means the car is her separate property and not community property. Civ.Code, sec. 164. See, also, People v. One 1939 La Salle, etc., 45 Cal.App.2d 709, 115 P.2d 39. The Oldsmobile should have been found to be the property of the wife and not community property.

Counsel for respondents cites and quotes from a considerable number of cases. The language quoted, when read alone and without reference to the facts of each case, goes far to sustain his position. However, when the cases are read, as we have read them, they not only are far afield and in no manner in point, but what is more the language quoted when dissected from its setting is very misleading. This manner of quoting from cases is not to be commended. No doubt the trial court had the case presented to him in much the same manner, and in the hurry which is incident to the trial of causes did not take time to read the cases cited and so was misled as to the law.

In view of the conclusion reached on this branch of the case it is not necessary that the other contentions of the appellants should be discussed. It would seem, however, in view of the fact that the case is reversed for a new trial, we should point out that the best evidence objection was inapplicable wherever made throughout the trial below. The best evidence rule, which requires the production of written instruments in evidence, has no application where the terms of a writing are not in issue and where the question of the existence of that writing is merely collateral to the issue. Then, in that situation, parol evidence may be given even though such evidence covers the same ground as the content of the writing. In other words, under such circumstances the witness is permitted to testify to a fact although the same fact could be proved or disproved by the writing. As was said in Marriner v. Dennison, 78 Cal. 202, at page 213, 20 P. 386, at page 391, “we understand the rule to be that, where the question is not as to the contents of a writing * * * and the question comes collaterally in issue, it may be proved by parol”. So in the instant case, as the witness Mrs. Swan sought to testify to deposits she had made in a bank she was not foreclosed from so doing by the fact that such deposits were shown on the books of the bank. Her endeavor was not to testify to the contents of those records, but to facts, which were nevertheless facts even though they were contained in a bank record. Likewise, the branch manager who purported to have personal knowledge of the extent of Mrs. Swan's deposits with his bank was entitled to testify thereto without producing or testifying from the bank record. The bank was not a party to the lawsuit and its records were hearsay. See Wigmore on Evidence, secs. 1252–1254; Coonrod v. Madden, 126 Ind. 197, 25 N.E. 1102; Wood, Pr.Ev., p. 4; Thayer, Preliminary Treatise on Evidence, 489.

For the reasons indicated the judgment is reversed.

HANSON, Justice pro tem.

MOORE, P. J., and McCOMB, J., concurred.

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