Opinion
Department Two
[23 P. 356] Appeal from a judgment of the Superior Court of the county of Merced, and from an order denying a new trial.
COUNSEL:
J. K. Law, for Appellant.
Frank H. Farrar, and Breckenridge & Peck, for Respondent.
JUDGES: McFarland, J. Thornton, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
[23 P. 357] This action was brought to recover the value of two horses and a wagon and harness. They were taken by defendant, as constable, under an execution against plaintiff and his wife, and sold. Plaintiff claimed the property as exempt from execution under subdivision 6 of section 690, Code of Civil Procedure, the claim being that, as a peddler, he habitually used it to earn a living. There was also in the complaint an item for the value of a certain bread-box, which was afterward withdrawn. Plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying a new trial.
The judgment will have to be reversed for the refusal of the court to give certain instructions asked by appellant. Counsel for respondent contends that the record does not show that other instructions were not given by the court, either on its own motion or at the request of one of the parties; and that, in the absence of such showing, it must be presumed that other instructions, covering the matters contained in appellant's rejected requests, were given. But, unfortunately for this contention, the record does show affirmatively that there were no such other instructions. It is true that at the beginning of the statement on motion for a new trial we find it stated that "the following, among other proceedings, were had and taken"; but the statement afterward shows that defendant asked the court to give thirteen instructions, marked respectively from 1 to 13; that the court refused to give those marked from 3 to 13, inclusive; that the court then gave a certain instruction asked by plaintiff; and that the "only other instructions given to the jury were numbered 1 and 2, asked for by defendant, and are as follows." As respondent had an opportunity to propose amendments to the statement, he should have seen to it that if there were other instructions they were put into it.
Instruction No. 7, asked by appellant and refused by the court, that "the burden of proving every material allegation of the complaint is on plaintiff, and if he fails to prove the material allegations of his complaint by a preponderance of evidence, you should find for defendant," is so much of a truism that perhaps the refusal or neglect of the court to give it should not of itself work a reversal of the judgment. But the instructions asked by defendant numbered 5, 6, 8, and 12 were correct and pertinent, and should have been given. The other instructions asked by defendant were properly refused. The instruction given at request of plaintiff was correct. We think that the document marked "Exhibit A" was a sufficient notification to the constable of a claim of exemption, and that it was not invalid because signed also by plaintiff's wife. Neither do we think that the receipt by the wife of thirteen dollars, surplus of the proceeds of the sale after satisfaction of the execution, as proved in the case, was a waiver of exemption.
We see no other material errors in the record; but for the reasons above given, the judgment must be reversed.
Judgment and order reversed, and cause remanded for a new trial.