Spencer v. Long

39 Cal. 700, 1870 Cal. LEXIS 141

• Court: California Supreme Court
• Decided: July 1, 1870
• Docket: No. 2,513
• Status: Published

Opinion

Rhodes, C. J.,

delivered the opinion of the Court, Wallace, J., and Sprague, J., concurring;

The Sheriff having sold the horses and harness, after they had been duly claimed by the plaintiff, as exempt from execution, on the ground that he was entitled to such exemption as a farmer, and he being, in fact, a farmer, the Sheriff is liable to the plaintiff for the value of the property.

The sale of the buggy was also wrongful, because, previous to the sale, the proceedings before the Justice of the Peace had. been removed to the County Court by certiorari, by which the Justice of the Peace was commanded to stay all proceedings in said cause; and the Justice had notified the Sheriff that such writ of certiorari had been issued, and commanded him to stay all proceedings upon the execution. The plaintiff is, therefore, entitled to recover the value of the buggy.

The statement on the motion for a new trial was not properly prepared, The grounds of the motion are not . contained in the statement. There was annexed to the statement an unsigned paper, containing the grounds of the motion, hut it constitutes no part of the statement, and the defendant was not entitled to be heard upon such a specification of the grounds of the motion. The grounds are indispensable to the statement. They constitute its basis, and if they are wanting, the statement should be disregarded.

Order granting a new trial reversed, and cause remanded.

Crockett, J., and Temple, J., expressed no opinion.