91

in writing entered into between them, she may sue or be sued alone. It is proper to allow plaintiff, a married woman, to add the name of her husband as a party plaintiff during the progress of the trial. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also.92 In actions brought under subdivision 2 of this section, the test is simply to ascertain if the suit is between her and her husband; and this being found in the affirmative, the necessity of introducing other parties cannot affect her right.93 In actions brought under subdivision 3, a temporary absence does not come within the meaning of the act. There must have been an abandonment on the part of the husband or wife, or a separation which was intended. to be final."4 The wife can appear in and defend an action separately from her husband; she therefore possesses, as defendant, all the rights of a feme sole, and is able to make as binding admissions in writing as other parties.95 The statute confers only a privilege which in many instances it may be important for the wife to assert for the protection of her interests, and in the exercise of which the fullest liberty should be accorded to her.96 Where there is a statute giving the wife an inchoate right of dower, she must be joined as a defendant in an action in partition.97

For any fraud or deceit practiced by the defendant, whether the injury were wrought through the form of a contract or not, affecting the common property, the remedy is by the husband alone.98 The husband of a married woman is properly joined with her as a party defendant in an action upon a partnership obligation contracted by the wife and third persons as partners previous to the marriage and while she was a feme sole. The wife is an improper party to a suit brought to recover money loaned to her to complete the amount of purchase money for a lot of ground, the deed of which was executed to her, but which

99

94 Tobin v. Galvin, 49 Cal. 36, 37. 95 Alderson v. Bell, 9 Cal. 321. 96 Van Maren v. Johnson, 15 Cal. 311.

97 Hurley v. O'Neill, 31 Mont. 595, 79 Pac. 242.

98 Barrett v. Tewksbury, 18 Cal. 336.

99 Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78.

became common property, and which purchase was afterwards ratified by the husband. There could be no personal judgment against the wife. 100 In California, the wife may appear in and defend an action separately from her husband.101 Where the defense of the wife is a special one, she can defend for her own right as well when sued jointly as if the trial was separate.102 To enable her to defend in her own right, she must possess as defendant the rights of a feme sole.10 In an action pertaining to her property as sole trader under the act of 1852, the husband need not be joined.104

103

The husband is properly joined with the wife in an action upon an obligation contracted by the wife previous to marriage.105 In a suit to foreclose a mortgage, and set aside a fraudulent conveyance of property by the husband to the wife, the wife was properly joined with the husband as a defendant.108 And in a foreclosure of a husband's mortgage for the purchase money of the wife's separate estate, both must be joined.107 So, also, where the wife executes a mortgage with her husband,108 or if the mortgage was given by the husband upon community property.109 So, in partition suits, the wife must be joined with her husband as defendant.110 In forcible entry and detainer, also, the husband is properly joined in the action. where the homestead is involved, the wife must be

100 Althof v. Conheim, 38 Cal. 230, 99 Am. Dec. 363.

101 Alderson v. Bell, 9 Cal. 315; approved in Leonard v. Townsend, 26 Cal. 435.

102 Deuprez v. Deuprez, 5 Cal. 387. 103 Alderson v. Bell, 9 Cal. 315; Leonard v. Townsend, 26 Cal. 435. In South Dakota, when a married woman is a party the same rules apply as if she were single. Code Civ. Proc., § 77.

104 Guttman v. Scannell, 7 Cal. 455. For other authorities, see Dunderdale v. Grymes, 16 How. Pr. 195; Rouillier v. Wernicki, 3 E. D. Smith 310; Avogadro v. Bull, 4 E. D. Smith 385; Freeman v. Orser, 5 Duer, 477. And she must be sued alone. McKune v. McGarvey, 6 Cal. 497; approved in Guttman v. Scannell, 7 Cal. 455, and Camden v. Mullen, 29 Cal. 564.

So, also, joined as

105 Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78.

108 Kohner v. Ashenauer, 17 Cal. 579.

107 Mills v. Van Voorhies, 20 N. Y. 412, 10 Abb. Pr. 152; Rusher v. Morris, 9 How. Pr. 266.

108 Oats v. Shuey, 25 Wash. 597, 66 Pac. 58; Anthony v. Nye, 30 Cal. 401; Conde v. Shepard, 4 How. Pr. 75; Conde v. Nelson, 2 Code Rep. (N. Y.), 58. See Fitzgerald v. Fernandez, 71 Cal. 504, 12 Pac. 562.

109 N. W. Bridge Co. v. Tacoma Ship Bldg. Co., 36 Wash. 333, 78 Pac. 996.

110 De Uprey v. De Uprey, 27 Cal. 329, 87 Am. Dec. 81; Ripple v. Gilborn, 8 How. Pr. 460; Tanner v. Niles, 1 Barb. 563.

111 See Howard v. Valentine, 20 Cal. 282.

defendant in certain cases.112 For the torts of the wife, committed out of the presence of the husband, the latter must be joined.113

§ 43. Actions by or against infants. When an infant is a party, he must appear either by his general guardian or by a guardian appointed by the court in which the action is prosecuted, or by a judge thereof. A guardian may be appointed in any case, when it is deemed by the court in which the action is prosecuted, or by a judge thereof, expedient to represent the infant in the action, notwithstanding he may have a general guardian, and may have appeared by him.114 The appearance of a general guardian is sufficient to give the court jurisdiction. of the persons of infant defendants, and the fact that no guardian ad litem was appointed for them is immaterial.115 When the infant is defendant, a guardian will be appointed upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant.116 Where infant defendants have no separate or special defense, no separate or special answer need be filed in their behalf, but joinder in a common answer with the other defendant is sufficient.117

§ 44. For infringement of patent. In selling an article which infringes upon a patent, the agent may be joined with the manufacturer as a party defendant in an action against them. as trespassers. 118

112 Sargent v. Wilson, 5 Cal. 504; approved in Moss v. Warner, 10 Cal. 297; Revalk v. Kraemer, Cal. 66; 68 Am. Dec. 304; Marks v. Marsh, 9 Cal. 96; Horn v. Volcano Water Co., 13 Cal. 70; 73 Am. Dec. 569; Anthony v. Nye, 30 Cal. 401.

113 Anderson v. Hill, 53 Barb. 238; Peak v. Lemon, 1 Lans. 295; Tait v. Culbertson, 57 Barb. 9; Kowing v. Manley, 57 Barb. 479, 49 N. Y. 192, 10 Am. Rep. 346; Brazil v. Moran, 8 Minn. 236, 83 Am. Dec. 772; Ball v. Bennett, 21 Ind. 427, 83 Am. Dec. 356; Turner v. Hitchcock, 20 Iowa, 310; Musselman v. Galligher, 32 Iowa,

383; McElfresh v. Kirkendall, 36 Iowa, 224; Luse v. Oaks, 36 Iowa, 562; Curd v. Dodds, 6 Bush, 681; Coolidge v. Parris, 8 Ohio St. 594.

114 Cal. Code Civ. Proc., § 372. 115 Richardson v. Loupe, 80 Cal. 499, 22 Pac. 227; Western Lumber Co. v. Phillips, 94 Cal. 54, 29 Pac. 328.

116 Cal. Code Civ. Proc., § 373; N. Y. Code Civ. Proc., § 470; B. & C. Codes, Or., § 33.

117 Western Lumber Co. v. Phillips, 94 Cal. 54, 29 Pac. 328.

118 Buck v. Cobb, 9 Law Rep. 545. See Bryce v. Dorr, 3 McLean, 582, Fed. Cas. No. 2070.

§ 45. Mandamus.-A writ of mandamus is properly directed to the mayor and city council to compel a tax levy.119 And in proceedings to compel issuance of a county warrant, the joinder of the county commissioners as parties, on the theory that the county would be ultimately affected by the result, is not improper.120. But in mandamus to compel the restoration of a record to its former meaning, by which plaintiff was appointed to a position instead of a third party, such third party need not be made a party defendant, though such change would affect him more than any other."

121

§ 46. Water and watercourses.-In suit by the consumers of the water of a ditch against the corporation owning the ditch to restrain it from compelling them to prorate with the stockholders of the corporation, all the consumers, similarly situated, should be made either plaintiffs or upon their refusal, defendants. For the corporation cannot represent the stockholders in such a suit.122 Persons using water for irrigation purposes from a creek branch are not necessary parties in suit to restrain enlargement of the head of the branch and consequent diversion of an undue amount of water."

123

§ 47. Injunction. In an action to enjoin the issuance of bonds by fund commissioners, it is necessary that some of the parties to whom bonds are to be issued should be parties defendant.124 In a bill of peace to restrain vexatious litigation, although some of the parties be mere accommodation grantees, they have a right to be heard at law in their own defense.125 Where one of the defendants in a joint judgment sues to have the judgment perpetually enjoined, his co-defendants should be made parties to the action.126

§ 48. Injuries caused by negligence. In an action to recover for damage done to the property of the plaintiff by reason of the breaking away of a dam built by contractors, when the employers exercise no supervision, give no directions, furnish

119 Territory v. City of Socorro, 12 N. Mex. 177, 76 Pac. 283.

120 American Bridge Co. v. Wheeler, 35 Wash. 40, 76 Pac. 534.

121 City of Denver v. People, 17 Colo. App. 190, 68 Pac. 114.

122 Farmers' High Line Canal etc. Co. v. White, 32 Colo. 114, 75 Pac. 415.

128 Sander v. Wilson, 34 Wash. 659, 76 Pac. 280.

124 Hutchinson v. Burr, 12 Cal. 103; affirmed in Patterson v. Yuba Co., 12 Cal. 105.

125 Knowles v. Inches, 12 Cal. 212. 126 Gates v. Lane, 44 Cal. 392.

no materials, and have not accepted the work, the contractors alone are liable.127 After the acceptance of the work, the owner is also liable for damage resulting from faulty construction.128 Common carriers, for loss of goods, may be sued jointly or severally.129 And in a damage suit against a railroad for injury to a passenger, incurred while the road was in the hands of a receiver, the purchaser who takes the road subject to all liabilities incurred during the receivership is a proper defendant.130

§ 49. Action for legacy charged on land.-Purchasers of land in unequal portions, charged with the payment of a legacy, must be joined in an action for the legacy."

132

131

§ 50. Actions against partners.-In California, partners may be sued by their common name, whether it comprises the names of the persons associated or not.1 In such case the statute provides that the judgment may run against the joint and individual property of the partner served, and against the joint property of the partner not served. The constitutionality of the statute, so far as it attempts to impose a liability upon the person or property of the partner not served, has been more than doubted.133 But a party can only be bound on a note executed in a firm name, who is actually a member of the firm executing the same, or has held himself out as a member so as to give the firm credit on his responsibility. So it would seem, dormant partners not disclosed need not be joined as defendants. 134 All partners are liable for fraudulent representations

127 Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345; Du Pratt v. Lick, 38 Cal. 691; O'Hale v. Sacramento, 48 Cal. 212; Wabash etc. Railroad Co. v. Farver, 111 Ind. 195, 60 Am. Rep. 696, 12 N. E. 296; Hughes v. Cincinnati etc. Ry. Co., 39 Ohio St. 461. See Baird v. Shipman, 132 Ill. 16, 22 Am. St. Rep. 504, 23 N. E. 384, 7 L. R. A.

128.

128 Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345; Fanjoy v. Seales, 29 Cal. 249.

129 McIntosh v. Ensign, 28 N. Y. 169; Merrick v. Gordon, 20 N. Y. 93. 130 Denver & R. G. v. Gunning, 33 Colo. 280, 80 Pac. 727.

131 Swasey v. Little, 7 Pick. 296.

132 Cal. Code Civ. Proc., § 388; Welch v. Kirkpatrick, 30 Cal. 202, 89 Am. Dec. 85.

133 Tay v. Hawley, 39 Cal. 93; Davidson v. Knox, 67 Cal. 143; Booth v. Gamble-Robinson Co., 139 Cal. 175, 72 Pac. 908.

134 North v. Bloss, 30 N. Y. 374; Wood v. O'Kelley, 8 Cush. 406; Lord v. Baldwin, 6 Pick. 352. See, also, New York Dry Dock Co. v. Treadwell, 19 Wend. 525; Clarkson v. Carter, 3 Cow. 84; Clark v. Miller, 47 Barb. 38; Mitchell v. Doll, 2 Har. & G. 159; Hurlbut v. Post, 1 Bosw. 28. See Pitkin v. Benfer, 50 Kan. 108, 34 Am. St. Rep. 110, 31 Pac. 695; Hahlo v. Mayer, 102 Mo. 93, 22 Am. St. Rep. 753, 13 S. W. 804, 15 S. W. 750.