State Ex Rel. Lund v. Superior Court

*557 Blake, J. This is an application for a writ of prohibition to restrain the superior court of Okanogan county from proceeding further in a cause pending in that court. The cause is entitled: “Ernest Leedy, Plaintiff, v. K. O. Lund and Mrs. K. O. Lund, Defendants. ’ ’ The action is predicated on a promissory note signed by the husband alone. It is alleged to be, however, the community obligation of the relators. The relators seasonably made a motion for a change of venue to Kittitas county, that being the county of their residence. Under the rule of State ex rel. Schwabacher Bros. & Co. v. Superior Court, 61 Wash. 681, 112 Pac. 927, Ann. Cas. 1912C, 814, Mr. Lund is not entitled to a change of venue, by reason of the following stipulation contained in the note: “Each and every party signing . . . this note hereby . . . agrees, in case suit is brought to collect this note, . . ' . that at the option of the holder hereof, the venue of said suit be laid in Okanogan county, Wash.” Construing Bern. Rev. Stat., § 216, it was held in the Schwabacher case that one signing a note which contained a provision similar to that quoted waived his right to have an action on the note tried in the county of his residence. The question here is whether the husband alone can bind the community to such a stipulation. It is too well settled to require citation of authority that a promissory note executed in pursuit of a community enterprise is a community obligation; and the presumption is that it is such. But it is equally well settled that the presumption is not conclusive. The community character of the obligation may be challenged by the wife. She has the right to be heard before the debt can be stamped with finality as a com *558 munity obligation. This is a substantial right which belongs to the wife individually, and which may be asserted by her even after sale of community property on execution, in cases where she was not made a party. Andrews v. Andrews, 3 W. T. 286, 14 Pac. 68; Bryant v. Stetson & Post Mill Co., 13 Wash. 692, 43 Pac. 931; Dane v. Daniel, 23 Wash. 379, 63 Pac. 268. Since the right to challenge the character of the indebtedness is personal to the wife, she alone can waive the rig’ht to be heard on it in the county of her residence. Mrs. Lund, not having signed the note, is not within the letter of the stipulation contained in it. To hold that she is bound by it, would necessitate an extension of the rule of the Schivabacher case. This we think should not be done. The right of a defendant in a transitory action to a change of venue to the county of his residence is conferred' by statute, and is held to be absolute. State ex rel. Martin v. Superior Court, 97 Wash. 358, 166 Pac. 630, L. R. A. 1917F, 905. It will not be held to be waived by implication. 27 R. C. L. 785. The writ will issue. Beals, O. J., Tolman, and Main, JJ., concur.