The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-11-29
Judge Stacks Latest Decision
Does Not Meet With
Approval.
MATTERS OF FACT AND LAW
Prescriptions of the Court in the
Spreckels Case Believed to Have
Been Incorrect.


shares of stock held by Rudolph Spreck-
among lawyers who have given the SUBJ
iect OF community propertyisome thought.
The decision, being upon demurrer, is
presumed to deal with questions of law
only, and yet question of fact-the time
when the community property under adj
judication was acquired by the plaintiff in
the case-played most important part in
forming the courts opinion. In the COM
plant of Claus Spreckels no allegation
was made as to the time when the stock
conveyed by the plaintiff TO Rudolph
Spreckels was acquired. The transfer was
made in 1898, and the only allegation is
that the stock was in Claus SpreckeIs' pos
session at that time.
In demurrlng to the complaint these
facts, in order to make the contention one
of pure law, were for the purposes of the
demurrer necessarily admitted, otherwise
an answer should have been made instead
OF a demurrer. The demurrer was made
upon general and statutory grounds, but
in no way was it mentioned that the stock
was acquired by Claus Spreckels prior to
the passage Of the act requiring the con-
sent of the wife to gifts OF community
property by the husband. The defendant
moved to dissolve the injunction on the
ground that there was no showing that the
plaintiffs were entitled TO one. 1t was gen.
eralIy presumed that under the rule that
pleadings are to be construed as against
the pleader, the absence of any allegation
on the part OF the defendant that the stock
was acquired prior 20 the act of 1891 would
Ieaa the court TO presume that the trans
fer came under that law or that the stock
was acquired after Its passage. In its
opinion, however, the court reverses thi.
order OF things.
A second matter of fact which entered
into the decision was upon the subject Of
the transfer. In no part of the com plant
did it state that the transfer was a gift; it
merely announced that the stock came
into possession of Rudolph Spreckels; and
in the demurrer no Issue was made of the
nature of the transfer; but the opinion of
the court was based upon, as the docu-
ment states, 1.-The question of the validity
OF the gift," at once bringing that question
OF fact into the case. Ali through these
matters of fact are brought to bear upon
the main issue. one of law, involving the
validity of the title OF Rudolph Spreckels
to the stock which he holds under trans
fer to him by Claus Spreckels without the
written consent OF Anna Spreckels, his
wife.
In neither complaint nor demurrer is
the element of time made an issue, nor
does it appear at all in the case except in
the decision. The presumption then, &C.
cording to general opinion, is that the
transfer must be governed by existing
laws, which at once brings the act of 1891
into the action. Among those who openly
express an opinion regarding the decision
is ex-City and County Attorney John Ii.
burst, and he sums up in his words the
general view taken of the case.
Judge Slac OK, - he said, sis undou btedly
an able jurist, anu he is usually so very
technical and so exceedingly careful to
confne himself to the ruling on a de.
murrer strictly to the pleadings in the
case that am surprised that he has here
been betrayed into error, but that ne is in
error 1 am very sure.
1.-THE complaint in this suit OF Spreckels
VS.. SpEeckels sets forth, as l understand
date, July, 1898, the plaintiffs were pos
sessed of certain property, that this was
community property, but that the husband
conveyed it TO the defendant without the
written concurrence of the wife. Nothing
is set forth as to the date OF the acquire
ment of that community property by the
husband.
1.-THE statutes OF 1891 practically provide
that the wife must join in writing with the
husband in the transfer of community
property except in case such property had
been acquired prior to the passage OF the
statute. Such being the case the general
force of the statute is that the wife must
join. The exception concerns only such
property as had been acquired before 1891.
And it is fundamental rule of law that
where no allegation to the contrary is
made any transaction must be assumed to-
have come under the general provisions OF
the law, and not under the ception.
Judge Slack has ruled IN his decision
that because in the complaint no allega-
ton has been made to the effect that the
transaction comes under the general pro-
visions of the statute it must be assumed
that it comes under the exception. This
evidently reverses the accepted rule of
law and thus is undoubtedly error.
1.-THE law point involved in this case is
precisely that involved in any action for
the recovery of money loaned or in any
suit Involving community property. For
instance:
Suppose 1 had loaned you $40 five years
ago and now sued to recover that amount
NY complaint reads that previous to the
commencement of this action / loaned
you money and SO forth. l say nothing
concerning the length of time which has
elapsed since the loan was made. Now the
general application of the law is that can
recover. The exception is that the lapse
OF a certain period outlaws the debt. But
under this decision OF Judge Slack it would
be held that the debt should be considered
outlawed unless l expressly stated that it
was not.
Another thing, unless / had expressly
stated the date of the loan or the length
of time which had since ella esed the plea
that the debt had outlawed could not be
made upon demurrer. 1t would be ques-
ton of fact which should come up in evil
dence and which should be pleaded only in
the answer. But Judge Slack in this de-