Spies v. Accessory Transit Co.

5 Duer 662

Opinion

Bosworth, J.

The demurrer must be overruled. The husband need not be joined with the wife, when the action concerns her separate property. (Code, § 114.) Whether the plaintiff is a citizen of California or of New York, is of no consequence, so far as concerns the remedies and the forms of proceedings, when she prosecutes in the courts of this state. The demurrer admits the truth of the allegation, that the baggage was her separate property, and the court does not know that a California wife may not have a separate estate. The legal presumption is, that she may.

If the defendant has a right to be informed, by the complaint, of the particular facts which constitute the baggage her separate property, his remedy is by motion under § 160 of the Code. A demurrer will not reach such a defect, as the complaint is good in substance.

The defendant may answer, on paying the costs of the demurrer.