APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment reversed.
Mr. Joe L. Green and Mr. James B. Rolle, Jr., for Appellant.
Mr. J. Fred Hoover, for Appellees.
This action has been brought to us on appeal from Yuma County where judgment was rendered against the appellees for damages resulting from an accident that occurred in Yuma, Arizona, in a case where Pauline Bernard, one of the appellees, was driving an automobile as the agent of the other appellee, Ray J. Boegen, the complaint alleging that through the carelessness and negligence of the said agent that the automobile injured the appellant, and out of the trial of the case the court rendered its judgment in favor of the appellant for the sum of $490, together with certain costs.
The minute entries show the trial of the cause on November 12, 1942; the entry of judgment on November 25, 1942, and the signing and filing of the judgment on November 28, 1942. The court found that the [61 Ariz. 211] appellant was entitled to judgment against both of the appellees jointly and severally.
The appellant in order to realize on his judgment had a writ of garnishment issued against the wages of Ray J. Boegen and served on the Southern Pacific Railroad Company, and the return of said company showed that there was due and owing the appellee Boegen for wages the sum of $38.16. Thereafter a motion was made by Ray J. Boegen "to release the money held in garnishment because the same is community property and the judgment is not against community property but separate property of the several defendants, and bases this motion on the hereunto attached affidavit."
The appellees, in support of their motion for release of said sum, filed the following affidavit:
"Ray J. Boegen and Pauline Boegen, being first duly sworn each for himself or herself, and not one for the other, upon oath say that they intermarried at El Centro, California, on the 24th day of November 1942; that the affiant herein Pauline Boegen, is the same person as the defendant herein designated as Pauline Bernard; that at the time this cause of action arose and at the time the court rendered its order, November 24, 1942, the defendants were both single persons, and on the date of the trial of said action, November 12, 1942, both defendants were single persons and the judgment was against their separate property, and that the money held in garnishment in this cause was earned Jan. First to January Fifth, 1943, and is community property of Ray J. Boegen and Pauline Boegen, husband and wife.
"Ray J. Boegen
The court on the hearing of the matter of the motion entered an order releasing the said sum.
The same date the court entered the order of judgment, the appellees intermarried at El Centro, California.
[61 Ariz. 212] It is the contention of the appellant that the community property of husband and wife is liable for the joint and several acts of the appellees in the commission of a tort before ...