Fraser v. Thrift

50 Cal. 476

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 4861
• Status: Published

Opinion

By the Court;

On the motion of the plaintiff in execution, the court ordered the sheriff holding the writ to levy it upon a particular tract of land, claimed by the defendant in the writ to be exempt from forced sale on the ground that it was his homestead. The sheriff having refused to levy the execution on the land for this reason, and the court finding that the land was not exempt as a homestead, made an order directing the sheriff to proceed with the levy, from which order the sheriff appeals. Counsel have failed to produce any precedent for such an order, and it is easy to see that if such a practice prevailed, it might, in many cases, result in serious perplexities. If so great an innovation in practice is to be introduced, it should be done by the Legislature and not by the courts.

Order reversed.