ALEXANDER FRANKENTHAL et al., Appellants,
vs.
SOL. SOLOMONSON, Respondent
No. 2906
SUPREME COURT OF WASHINGTON
20 Wash. 460, 55 P. 754
January 6, 1899, Decided
Appeal from Superior Court, Spokane County. -- Hon. WILLIAM E.
RICHARDSON, Judge.
SUPPLEMENTARY PROCEEDINGS AGAINST WIFE -- EXAMINATION WITHOUT
HUSBAND'S CONSENT.
In proceedings supplementary to execution, brought against the
wife of a judgment debtor to discover if she have property
belonging to him in her possession, the wife may be examined
without the consent of the husband, as he is not a party to the
proceeding, and the case, consequently, does not fall within Code
Proc., § 1649 (Bal. Code, § 5994), which provides that a wife
shall not be examined for or against her husband without his
consent.
Stoll & Macdonald, for appellants.
Adolph Munter, for respondent.
ANDERS, J. SCOTT, C. J., and GORDON, DUNBAR and REAVIS, JJ.,
concur. ANDERS
{*460} On June 21, 1897, the plaintiffs and appellants herein
recovered a judgment in the superior court of Spokane county
against one Sol. Solomonson for the sum of $ 1,315.45 and costs.
Execution was issued thereon, placed in the hands of the sheriff
of the county, and by him returned wholly unsatisfied. Thereafter
the plaintiffs instituted this proceeding against Sarah
Solomonson, wife of the said judgment debtor, under an act of the
legislature approved March 15, 1893, entitled, "An act relating
to proceedings supplemental to execution," Laws 1893, p. 435.
Section 3 of that act (Bal. Code, § 5314) provides that
"Upon proof by affidavit or otherwise, to the satisfaction of the
judge, that execution has been issued as prescribed {*461} by
section 1 of this act, and also that any person or corporation
has personal property of the judgment debtor of the value of
twenty-five dollars or over, or is indebted to him in said
amount, the judge may make an order requiring such person or
corporation, or an officer thereof, to appear at a specified time
and place before him, or a referee appointed by him, and answer
concerning the same."
In accordance with this section, an affidavit was filed on behalf
of the plaintiffs, setting forth the rendition of the judgment
against said Sol. Solomonson, the issuance and return of the
execution, and that the defendant Sarah Solomonson had in her
possession or under her control personal property of the value of
twenty-five dollars and more, and other property, all of which is
the separate property of said Sol. Solomonson, and is held in the
possession and under the control of said Sarah Solomonson for the
purpose of preventing the collection and satisfaction of said
judgment and execution. On motion of plaintiffs, the court issued
an order directing the said Sarah Solomonson to appear before the
court at a time and place designated, then and there to be
examined touching what property, if any, she had or controlled
and which was the separate property of said Sol. Solomonson, or
in which he had some separate interest. She appeared at the time
and place designated, and, the matter coming on to be heard, the
said Sol. Solomonson objected to her being examined upon the
ground that a wife may not be examined for or against her husband
without his consent. The consideration of this objection was
taken under advisement by the court, and thereafter sustained,
and judgment was entered dismissing the proceedings. To these
rulings of the court the plaintiffs duly excepted, and the cause
is now here upon appeal; and the only question to be determined
is whether the court erred in sustaining the objection and
dismissing the proceeding.
{*462} It is claimed by the respondent that the action of the
court was fully justified by § 1649 of the Code of Procedure (2
Hill's Code, Bal. Code, § 5994), which reads as follows:
"A husband shall not be examined for or against his wife, without
the consent of the wife, nor a wife for or against her husband
without the consent of the husband; nor can either, during
marriage or afterward, be, without the consent of the other,
examined as to any communication made by one to the other during
marriage."
It is insisted by the learned counsel for the respondent that
this law is based upon higher ground than that invoked by
appellants, namely, that of preventing the suppression of truth,
or the failure of justice in particular cases. And, as an
expression of his position, counsel cites us to the declarations
of Chancellor Kent and of Lord Coke. "The husband and wife," says
Chancellor Kent, "cannot be witnesses for or against each other.
This is a settled principle of law and equity, and it is founded
as well on the interest of the parties being the same, as on
public policy. The foundations of society would be shaken,
according to the strong language in one of the cases." 2 Kent's
Commentaries, 178-179. And Lord Coke says: "It has been resolved
that a wife cannot be produced against her husband, as it may be
the means of implacable discord and dissension between them and
the means of great convenience." Coke on Littleton, 6 b. It must
be borne in mind, however, that both Chancellor Kent and Lord
Coke were speaking of the rule at common law. The rule that
excluded husband and wife from testifying for or against each
other was adopted at a very early day in England, and at a time
when husband and wife were in law one person, and when no party
to an action was a competent witness because of his interest
therein. But this rule of common law has been changed by
legislation in {*463} this and almost every other state, and the
interest of a party in an action is no longer a disqualification
as a witness. And our law makers manifestly concluded that public
policy should not alone prevent a husband or wife from testifying
for or against each other. Under the statute above quoted, either
may be a witness for or against the other by the consent of that
other; and it can hardly be said that that is public policy, as
the term is ordinarily understood, and therefore beneficial to
the public at large, which depends exclusively upon the will or
caprice of a particular individual. Counsel for the respondent
also cites the following cases as sustaining his contention that
the defendant, Mrs. Solomonson, was not a competent witness in
this proceeding: Berles v. Adsit, 102 Mich. 495 (60 N.W. 967); De
Farges v. Ryland, 87 Va. 404 (12 S.E. 805, 24 Am. St. Rep. 659);
Niland v. Kalish, 37 Neb. 47 (55 N.W. 295); Wolford v. Farnham,
44 Minn. 159 (46 N.W. 295); Macondray v. Wardle, 26 Barb. 612;
White v. Stafford, 38 Barb. 419.
But an examination of these authorities will disclose that they
are cases in which both the husband and wife were parties, and in
which the plaintiff called either the one or the other as a
witness; and neither of the cases involved a proceeding in any
wise like the present, except the Michigan case, in which a wife
was cited as garnishee in an action pending against her husband,
and in which it was held that she could not be compelled to
testify over her husband's objection. The rule contended for by
respondent here was properly applied in those cases. But this is
an entirely different proceeding. Here the husband is not a
party, and, we think, it may be said, is not interested in such a
sense as to preclude the examination of the wife as a witness for
the plaintiff. Mr. Freeman, speaking of supplemental proceedings,
says that a defendant is not entitled to notice of a proceeding
of this character against {*464} his creditor; nor is he a party
thereto in such a sense as entitles him to interfere therewith,
or to conduct the defense of the party cited. 2 Freeman,
Executions (2d ed.), § 411. See, also, Gibson v. Haggerty, 37
N.Y. 555 (97 Am. Dec. 752), and Jones v. Roberts, 60 N.H. 216. In
the case last cited, it was held that a wife may be charged as
trustee of her husband, and that the latter has no such necessary
interest in the controversy between the plaintiff and the trustee
as to make him the adverse party within the meaning of the
statute. It appears that in some jurisdictions a writ of
garnishment may be issued either before or after judgment, and,
in considering the nature of such proceeding, Mr. Shinn observes
that --
"It may be stated, as a rule, that in states where garnishment is
not issued until after the creditor obtains judgment against his
debtor, then the proceeding by garnishment against a person
indebted to the judgment debtor is a new suit to which the
creditor is plaintiff and the garnishee, the defendant, brought
into court by the process. It is governed by the general rules
applicable to other suits, and to this suit a judgment debtor is
a stranger." 2 Shinn, Attachment, § 469.
While in this state a proceeding after judgment is not
denominated a garnishment, the principle involved is the same;
and it would appear from the quotation from this learned author
and the authorities therein referred to that the judgment debtor
is a mere stranger to this proceeding against his wife. It
follows, therefore, that, whatever the testimony of Mrs.
Solomonson might have been, it would have been neither for or
against her husband, but for or against herself. If the husband
had been called as a witness by the plaintiff, a different
question would have been presented. In a proceeding like this,
the supreme court of Wisconsin, in In Re O'Brien, 24 Wis. 547,
decided that the judgment debtor's wife may be required to
disclose whether she has property of her husband's {*465} under
her control, and may be attached as for a contempt for refusing
to answer. At that time the statute of Wisconsin, like ours,
permitted parties other than the judgment debtor to be examined
in supplementary proceedings. The law was subsequently changed so
as to restrict the proceeding to the judgment debtor alone; and
the supreme court of the state, in Blabon v. Gilchrist, 67 Wis.
38, held that, under the new law, the husband was not a competent
witness against the wife, who was the judgment debtor. There is
nothing in this latter case inconsistent with the former. In New
York it was held, at a special term of the supreme court, that
the wife of a judgment debtor may be examined under § 294 of the
Code, which authorizes the examination of third persons alleged
to have property belonging to the judgment debtor. Lockwood v.
Worstell, 15 Abb. Pr. 430, note. The same doctrine was announced
in Thompson v. Silvers, 59 Iowa, 670 (13 N.W. 854), by the
supreme court of Iowa, and is approved by Mr. Waples in his work
on Attachment and Garnishment (2d ed.), §§ 949, 950. See, also, 2
Wade, Attachment, § 350; Rood, Garnishment, § 41.
It seems to us that this rule is both reasonable and just, and
not inconsistent with our statute. Any other rule would permit a
debtor to put all of his personal property in the hands of his
wife, and thereby relieve himself from the payment of his honest
debts, though abundantly able to pay them.
The judgment is reversed, and the cause remanded for further
proceedings in accordance with this opinion.
DISPOSITION
Reversed.
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