
    [No. 2906.
    Decided January 6, 1899.]
    Alexander Frankenthal et al., Appellants, v. Sol. Solomonson, Respondent.
    
    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 ease, 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.
    Appeal from Superior Court, Spokane County.—Hon, William E. Richardson, Judge.
    Reversed.
    
      Stoll & Macdonald, for appellants.
    
      Adolph Munfer, for respondent.
   The opinion of the court was delivered by

Anders, J.

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 $1,815.45 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 by section 1 of tbis act, and also that any person or corporation has personal property of tbe judgment debtor of tbe value of twenty-five dollars or over, or is indebted to him in said amount, tbe judge may make an order requiring such person or corporation, or an officer thereof, to appear at a specified time and place before bim, or a referee appointed by bim, and answer concerning tbe same.”

In accordance with tbis section, an affidavit was filed on behalf of tbe plaintiffs, setting forth tbe rendition of tbe judgment against said Sol. Solomonson, tbe issuance and return of tbe execution, and that tbe defendant Sarah Solomonson bad in her possession or under her control personal property of tbe value of twenty-five dollars and more, and other property, all of which is tbe separate property of said Sol. Solomonson, and is held in tbe possession and under tbe control of said Sarah Solomonson for tbe purpose of preventing tbe collection and satisfaction of said judgment and execution. On motion of plaintiffs, tbe court issued an order directing tbe said Sarah Solomon-son to appear before tbe court at a time and place designated, then and there to be examined touching what property, if any, she bad or controlled and which was tbe separate property of said Sol. Solomonson, or in which be bad some separate interest. She appeared at tbe time and place designated, and, tbe matter coming on to be beard, the said Sol. Solomonson objected to her being examined, upon tbe ground that a wife may not be examined for or against her husband without bis consent. Tbe consideration of tbis objection was taken under advisement by tbe court, and thereafter sustained, and judgment was entered dismissing tbe proceedings. To these rulings of tbe court tbe plaintiffs duly excepted, and tbe cause is now here upon appeal; and tbe only question to be determined is whether tbe court erred in sustaining tbe objection and dismissing the proceeding.

It is claimed by tbe respondent that tbe action of tbe court was fully justified by § 1649 of tbe Oode of Procedure (2 Hill’s Code, Bal. Code, § 5994), wbicb reads as follows:

“A busband shall not be examined for or against bis wife, without tbe consent of tbe wife, nor a wife for or against her busband without the consent of tbe busband; nor can either, during marriage or afterward, be, without tbe consent of tbe other, examined as to any communication made by one to the other during marriage.”

It is insisted by tbe learned counsel for the respondent that this law is based upon higher ground than that invoked by appellants, namely, that of preventing tbe suppression of truth, or tbe failure of justice in particular cases. And, as an expression of bis position, counsel cites us to tbe declarations of Chancellor Kent and of Lord Coke. “Tbe busband 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 tbe interest of tbe parties being the same, as on public policy. The foundations of society would be shaken, according to tbe strong language in one of tbe cases.” 2 Kent’s Commentaries, 178-179. And Lord Coke says: “It has been resolved that a wife cannot be produced against her busband, as it may be tbe means of implacable discord and dissension between them and the means of great inconvenience.” Coke on Littleton, 6 b. It must be borne in mind, however, that both Chancellor Kent and Lord Coke were speaking of tbe rule at common law. Tbe rule that excluded busband 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 á competent witness because of bis interest therein. But this rule of common law has been changed by legislation in 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 hoth 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. Ereeman, speaking of supplemental proceedings, says that a defendant is not entitled to notice of a proceeding of this character against 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 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 Hew 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.

Scott, O. J., and Gordon, Dunbar and Reavis, JJ., concur.  