Opinion of the Court-DUNBAR, J. [2 Wash. that this affiant further notified said Murphy that he believed that said Murphy had a perfectly good defense on the merits of the appeal, and that he should advise said Murphy to at once perfect said appeal; that on the 10th day of February, 1891, about 1:30 P. M., said Mr. Sessions, attorney for said appellee, left at this affiant's office, in the custody of a law student, his motion to dismiss appeal and confirm judgment; that on the 24th day of February this affiant notified said Murphy that other counsel would have to be retained in the case, that this affiant's health being such that he could not properly attend to the matter; that on Thursday evening, February 26, 1891, this affiant and said Murphy duly retained the firm of Snell & Bedford as counsel in this case; that this affiant was by reason of ill health unable to attend to any law business and was confined to his bed on the 27th day of February, the day of the hearing of the motion." Fred T. Peet, and Snell & Bedford, for appellant. The opinion of the court was delivered by DUNBAR, J.-This is a motion to dismiss an appeal for the reason that appellant has not perfected his appeal within the time prescribed by law and the rules of this court, and affidavits and counter-affidavits are filed in support of and opposed to the motion. We do not think that the affidavit of appellant's attorney shows any legal or reasonable excuse for the failure. It follows that the motion will be sustained and the appeal dismissed, and it is so ordered. ANDERS, C. J., and SCOTT, HOYT, and STILES, JJ., concur. Mar. 1891.] Opinion of the Court - HOYT, J. [No. 173. Decided March 13, 1891.] J. B. JONES et al. v. CARL A. SANDER. APPEAL NOTICE-PARTIES- VOIDABLE DECREE. Where the decree in an action is such that several of the defendants, who do not join in an appeal, are prevailing parties as against those who do, notice of appeal should be served on those not joining, under the act of March 22, 1890, providing that a party desiring to appeal must serve notice on the prevailing party. Although the pleadings may not entitle defendants in an action to affirmative relief, a decreo determining the rights of defendants between each other is voidable, and not void, where the court had jurisdiction of the persons and subject-matter; and those in whose favor it establishes rights are prevailing parties. Appeal from Superior Court, Kittitas County. The facts are sufficiently stated in the opinion. Pruyn & Ready, for appellants. Daniel Gaby, for appellee. The opinion of the court was delivered by HOYT, J.-Appellee brought an action against a large number of defendants to restrain them from diverting the waters from Wilson creek so as to prevent a certain flow therein through his land situated on said creek. Some of the defendants, by way of answer, set up a claim to certain. water of said creek, and asked that it be decreed to them. Upon the trial of the cause the question of the rights of the respective parties as to the waters of such creek were gone into, and the decree of the court established the same, not only as between each of such defendants and the plaintiff, but also as between such several defendants themselves. From this decree a part of the defendants have attempted to appeal. But they did not join their codefendants, nor were notices served upon them; and it is 2 329 3 193 2 329 4 643 26* 224 30 671 2 329 15 439 Opinion of the Court-HoYT, J. [2 Wash. contended that, for want of such joinder or notice, the attempted appeal is insufficient to give this court jurisdiction. It has been decided by this court that where a part of several co-parties appeal, they must serve notice thereof upon all the other co-parties, as required by § 454 of the code, and that a failure so to do would deprive this court of jurisdiction. See Cline v. Mitchell, 1 Wash. 24 (23 Pac. Rep. 1013); Nelson v. Territory, 1 Wash. 125 (23 Pac. Rep. 1013). These cases are decisive of the one at bar, if said § 454 and the other sections of the code to be construed in connection therewith are still in force. But appellee insists that these sections have been repealed by the act of March 22, 1890. We are inclined to think that this act does not repeal the sections of the code in question. But it is not necessary that we should here decide that question, as this attempted appeal is insufficient under the said act of March 22, 1890. By that act the party desiring to appeal must serve notice on the prevailing party; and the decree in this case was such that several of the defendants who did not join in the appeal were prevailing parties, as against those who did, and should have been served with notice. Appellants practically concede this to be true by the terms of the decree, but they contend that the said decree is void, so far as it attempts to determine the rights of the defendants among each other; their contention in that regard being that the pleadings upon the part of such defendants did not state facts sufficient to entitle them to the relief granted. We agree with appellants that such pleadings were insufficient, and that it was error on the part of the trial court to decree affirmatively in their favor, as it did. But we cannot agree that such parts of its decree were void. It had jurisdiction of the persons; and the pleadings, though insufficient, gave it jurisdiction of the subject-matter, from which it must follow that any decree rendered therein, however erroneous, was voidable only, and not void. Until Mar. 1891.] Argument of Counsel. reversed, such parts of said decree were binding on all the parties to the action, and, being to a certain extent adverse to the appellants, those in whose favor they established rights were prevailing parties, within the meaning of said. act, and should have been joined in the appeal, or served with notice thereof. The motion to dismiss must be granted. ANDERS, C. J., and DUNBAR, SCOTT, and STILES, JJ., concur. [No. 153. Decided March 14, 1891.] THE COLUMBIA NATIONAL BANK V. ALLEN EMBREE, Executor. COMMUNITY PROPERTY - LIABILITY FOR SEPARATE DEBTS. Where a party dies possessed of an interest in community property which is not required to pay the community debts, and is not otherwise exempt, such interest is liable for his separate debts when his separate property is exhausted. Appeal from Superior Court, Columbia County. The facts are fully stated in the opinion. Edmiston & Miller, for appellant. The fundamental idea of the community system is, that marriage makes the man and woman partners. De Blane v. Lynch, 23 Tex. 25; 8 Cal. 597. Upon the dissolution of marriage, community property becomes a primary fund for the payment of all community debts. Christmas v. Smith, 10 Tex. 123. The intention of the legislature as expressed in §§ 2411, 2412, Code 1881, is to make community property a primary fund for the payment of community debts, and if this view be correct, then it must of Argument of Counsel. [2 Wash. necessity be a secondary fund for the payment of separate debts. M. M. Godman, and S. G. Cosgrove, for appellee. Funds arising from the sale of community real estate should not be applied in payment of the separate debts of the deceased. Code 1881, §§ 2411, 2412; Johnston v. San Francisco Savings Union, 75 Cal. 134 (7 Am. St. Rep. 129). The appellant had no claim or lien against the community property during the lifetime of McGee, and could not have taken the same in payment of its debt. Code 1881, § 2410; Smith v. Sherwin, 11 Or. 269; Andrews v. Andrews, 3 Wash. T. 286; Brotton v. Langert, 1 Wash. 73. The mere fact of the death of McGee did not confer upon his creditors the right to subject to the satisfaction of their claims, property which before his death was not liable or chargeable with their payment. Code, §§ 2411, 2412; Johnston v. San Francisco Savings Union, 75 Cal. 134 (7 Am. St. Rep. 129). Under a statute similar to ours, the supreme courts of Texas and California have repeatedly held that, upon the dissolution of the marriage, by the death of one of the spouses, the community real property vests absolutely one-half in the survivor and one-half in the heirs of deceased, subject to the payment of such debts as the community property is charged with by law. In this state the community real property is charged with the payment of community debts only, and cannot be taken to satisfy the separate debt of either husband or wife. Robinson v. McDonald, 11 Tex. 385 (62 Am. Dec. 480); Thompson v. Cragg, 24 Tex. 600; Walker v. Howard, 34 Tex. 478; Johnson v. Harrison, 48 Tex. 268; Wilson v. Helms, 59 Tex. 680; Cook v. Norman, 50 Cal. 633; Murphy's Heirs v. Jurey, 39 La. Ann. 785 (2 So. Rep. 575); Brotton v. Langert, 1 Wash. 73; Code 1881, §§ 2410-12. Under the provisions of §§ 2411 and 2412 of the code, the interest of the heirs in the community real estate may be sold for the purpose of paying community debts, |