The opinion
On Application por Rehearing.
McGloin, J.
We are asked to grant a reheariug in this case, on the ground, that the objection urged to the capacity of Mrs. Brown to sue in this case, was one of pleading; that she could not, appearing to enforce pretended rights of a paraphernal character, convert the demand into one for a community claim, said causes of action being distinct and contradictory. Were this really the character of the issues presented, we should have granted a rehearing, as we do not desire to be placed in the attitude of holding that a woman, who distinctly alleges that a certain right is paraphernal in its nature, can, in face of such allegations, show it to be one in community, and recover accordingly.
What, we did declare was, that it is competent for the husband to place a community claim in the name of his wife, if he so desires, and to sue for it as such, and have the judgment rendered for her use
The petition in this case is a joint one by husband and wife. It nowhere declares that the debt is the paraphernal property of the latter, and does not even annex, or make the •act of purchase, with its declarations, a part of itself.
It is true, that it does not expressly declare that the claim was a community one, but, even if the presumption in this •connection, created by law, did not supply this omission, defendant might have forced plaintiffs to be more explicit, and then, had the declaration of separation, and of the paraphernal, •character of the claim been made, their position would have been maintained by this tribunal.
*274 Appellants complain that this Court held, that the admission by them made in the trial below, that the object of the demand belonged' to the community, changed the nature of the cause of action, or waived objection thereto.
Such was not the view of the Court. Had the petition been one upon a claim alleged to be the separate property of the wife, and, in pursuance of an objection, properly made, it bad been shown by admissions, or otherwise, that the claim was not the paraphernal property of the wife, but belonged to the community, this would be but establishing the verity of the objection, instead of constituting a waiver thereof. In this case, however, the petition has no such allegation, and the objection that we considered as being waived by the admission, in question, was not one of pleading, but one affecting the competency of the husband to testify.
Rehearing refused.