The opinion
SHENK, J., Dissenting.
In no uncertain terms the Legislature has classified property owned by spouses before marriage and property acquired by them after marriage. Since 1872 section 162 of the Civil Code has provided that “All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, . . . is her separate property.” And for a like period section 163 of the same code has provided that, “All property owned by the husband before marriage, and that acquired afterward by gift, bequest, devise and descent, ... is his separate property.” Section 164 then and since has provided that, “All other property acquired after marriage by either husband or wife, or both ... is community property.”
Without question the right of action acquired by the defendant was property. It was a chose in action and personal property as defined by section 14 of the Civil Code. (See also 6 West’s Anno.Cal. Code, p. 67, and cases cited in n. 15.) It was acquired during the marriage and lifetime of the spouses and before the entry of the interlocutory decree. That decree did not sever the marriage relationship. On the record here presented the cause of action and the fund derived therefrom continued to be community property. (Brown v. Brown, 170 Cal. 1 [ 147 P. 1168 ].) Such a cause of action was held to be community property in Zaragosa v. Craven, 33 Cal.2d 315 [ 202 P.2d 73 , 6 A.L.R.2d 461 ], and that case cannot be dis *258 tinguished from the case at bar. The property right here involved was either the separate property of the defendant or the community property of the spouses. It could not be both. The Legislature has so defined separate property as to exclude it from that category. The Legislature has also declared that all property not defined as separate property is community property. Now the court holds that all does not mean all, and declares in effect that the cause of action was not community property. The statutory definitions include all property of whatever description owned or acquired by the spouses. The fund here involved is certainly not included within the definition of separate property and is therefore community property.
I can see no justification for setting at nought the decision in the Zaragosa case and other cases cited therein in support thereof. The District Court of Appeal of the First District, Division Two, affirmed the judgment in a well considered opinion authored by Mr. Justice Dooling and reported in 296 P.2d 896 . For the reasons stated in that opinion and on the authority of the Zaragosa and other cases to like effect, I would adhere to the plain language of the statute as heretofore applied by this court and affirm the judgment.