Rapoza v. Sheldon

*52 OPINION OP THE COURT BY PERRY, C.J. (Parsons, J., dissenting.) This is an action of replevin wherein the plaintiff, a married woman, prays that she may have restitution of a one-ton Ford truck, a one-ton Chevrolet truck and a two-ton Federal truck of the aggregate value of $700, or a judgment for the sum named with damages for the detention of the trucks. The circuit judge, sitting without a jury, rendered judgment for the defendant, who is a deputy sheriff of Kawaihau in the County of Kauai and' had attached the property in an action brought by one Ching Yau against the husband of the present plaintiff. The circuit; judge in his written opinion said: “I find the preponderance of the evidence is in favor of the defendant. 1 The plaintiff has failed to satisfy me that she is the true owner of the trucks in question and I am further satisfied, from the evidence, that if the *53 ownership of the trucks was and is in plaintiff, she is, nevertheless, estopped from claiming same and that they were also subject to attachment and are lawfully held by the defendant in this case by virtue of a writ of attachment issued in a suit against plaintiff’s husband, under tiré provisions of said Sec. 3003, Revised Laws of Hawaii 1925. I am satisfied that the evidence sustains the contention of the defendant.” The case comes to this court by bill of exceptions. It may be assumed for the purpose of these exceptions that, as claimed by the plaintiff, the evidence required a finding that as between the wife and the husband the wife was the owner of the trucks and that the evidence adduced was not such as to justify a finding that the wife was estopped, by reason of her representations or of her silence, from setting up her ownership as against the creditor. Nevertheless, the judgment below must be sustained. Section 3003, R. L. 1925, provides as follows: “When a married woman does, or proposes to do, business on her separate account, she or her husband shall file in the office of the treasurer of the Territory a certificate setting forth her name and residence, and the name and residence of her husband, the nature of the business, and the place where it is, or is proposed to be carried on, giving, if practicable, the street and the number on the street. * * * The treasurer shall cause to be kept a book wherein shall be recorded the certificates so filed. * * * The book shall be properly indexed, and shall, during all business hours, be open to the inspection of' the public without charge. If the certificate be not filed as aforesaid, the personal property employed in the business shall be liable to be attached as the property of the husband, and to be taken on execution against him.” There was ample evidence before the court that the present plaintiff rented the three trucks to the *54 County of Kauai for tlie hauling of rock, two of them at a stated ¡rental per day and the third one at an agreed price per cubic yard of material hauled; that under this arrangement the county used the three trucks for some time and paid the plaintiff the agreed compensation “by county checks”; and that the county last used the trucks under this agreement on May 9, 1926, when “the job was shut down”. While this particular use by the county ceased on May 9, 1926, and the attachment was not levied until June 7 following, the plaintiff was, prior to the levy, bidding for the performance of certain work for the county and intended to use the same three trucks in hauling rock under the contract which she ’ hoped to secure. Assuming that, as contended by the plaintiff, she was the owner of the trucks, or that, as’ to one of them, she was in possession of it under a conditional sale agreement, she was doing business with them on her separate account within the meaning of the statute. This was not an instance of one isolated letting for hire. It was a continuing arrangement while it lasted; and the respite from May 9 to June 7 was not due to a change in the mode of use or to a discontinuance of the business but was merely while awaiting the commencement of operations under the new contract. It was specifically admitted during the trial that the requirement of section 3003 concerning ,the filing of a certificate had not been complied with prior to the attachment. The penalty of the statute must therefore attach and the personal property employed in the business, to-wit, the trucks, became subject to attachment as the property of the husband.- ¡ The contention that the statute, if so applied, took away the property of this plaintiff without due process of law and is unconstitutional, cannot be sustained. Section 3003 was a part of chapter 11 of the Laws of *55 1888, the provisions of which took the place of sections 1286 and 1287 of the Civil Code of 1859. Under these preexisting laws the theory was that the wife should “be deemed for all civil purposes to be merged in her husband and civilly dead.” It was there provided that “the husband shall, in virtue of his marriage, and in consideration of the responsibilities imposed on him by law, be the virtual owner, except otherwise stipulated by express marriage contract, of all movable property belonging to his wife anterior to marriage and of all movable property accruing to her after marriage; over all of which movable property he shall, unless otherwise stipulated by contract, have absolute control for the purposes of sale or otherwise, and the same shall be equally liable with his own for his private debts.” In other words, immediately prior to the laAV of 1888, the husband became, by virtue of the marriage, the owner of all of the movable property of the wife and that property could be levied upon in satisfaction of his debts. The law of 1888 was much more liberal and permitted the wife to own and hold and manage her separate property and to dispose of it in the same manner as if she Avere sole, with certain limitations as to realty not material in this case, and with the further limitation, which is material, that if she Avished to do business on her separate account she must file the certificate mentioned in order to apprise the Avorld in general and the husband’s creditors in particular that the property Avas hers and that it could not be taken in execution against the husband. The later laAV not only did not take aAvay Avhat she had before but gave her more than she had. It gave her the ownership of personalty which under the old laAV would belong absolutely to her husband and it only asked .of her that she file a certificate when doing business on her separate account. There is in this amendment no violation of any constitutional principle. *56 .The constitutionality of the statute of 1859 has not been attacked and will not be considered. L. A. Dickey for plaintiff. P. L. Rice and P. V. Olibborn for defendant. It is further contended on behalf of the plaintiff that under a correct construction of section 3003 the property can be taken in execution only “in suits based upon contracts made in the prosecution of the business which a married woman carries on.” We find no such limitation in the language of the section. Another contention is that the property in question is exempted from execution under section 2460, R. L. 1925, as a cart or truck “by the use of which a cart-man, drayman * * * or other laborer actually earns his living.” In our opinion, one who owns three trucks and rents them out to others at stated prices per day or per cubic yard1 of material hauled is neither a drayman nor a laborer within the meaning of that provision. The statute was evidently intended to refer to the person actually driving the dray or truck and thereby earning his living. The exceptions to the rejection or the admission of evidence need not be considered, in the light of our conclusions relating to section 3003 and the lack of the certificate required thereby. The exceptions are overruled.