The indebtedness, for the recovery of which the action is brought, is community property. (Civil Code, § 164; Connors v. Connors , 4 Wis. 112; Meyer v. Kinser , 12 Cal. 247; Pixley v. Huggins , 15 Cal. 127; McDonald v. Bodger , 23 Cal. 393; Wedel v. Herman , 59 Cal. 507.) Section 168 of the Civil Code does not make the earnings of the wife her separate property; it simply takes them out of the rule that all community property is liable for the debts of the husband. (Hoyt v. White , 46 N.H. 45; Birkbeck v. Ackroyd , 74 N.Y. 356.) Section 1880 of the Code of Civil Procedure, which prohibits parties or their assignors, or persons in whose benefit an action is prosecuted, from testifying when the adverse party is the executor or administrator of a deceased person, does not disqualify the wife of the claimant; and she is competent to give evidence sustaining his claim against the estate. (Shafer v. Dean, 29 Iowa 144; Wendeling v. Besser, 31 Iowa 248.)
JUDGES: Myrick, J. Sharpstein, J. and Thornton, J., concurred.
OPINION
MYRICK, Judge
Action to recover an alleged indebtedness due from defendant's testator. Causes of action are separately stated in the complaint. Following these allegations is an allegation of the death of the testator, and of the proceedings in probate. Objection is made that the allegations as to the death and the proceedings in probate are not separately stated in each count. The point is not well taken. The allegations may be considered as referring to either and both of the counts.
The subject of the action was community property; no such agreement existed between plaintiff and his wife as made the [6 P. 135] proceeds of her labor her separate property; therefore, the husband was the proper plaintiff. Such being the case, the wife was not incompetent as a witness, under the code.
We think the findings were sustained by the evidence; we see no error. On the contrary, there is no merit in the appeal.
Judgment affirmed.