108 P. 717 | Cal. Ct. App. | 1910
This is an appeal from a judgment in favor of the defendant taken within sixty days after the entry thereof, in an action to recover damages for the conversion of property claimed by plaintiff as exempt from execution.
Plaintiff had been engaged as a farmer for about ten years, when in March, 1907, a farm comprising eighty acres, which he held under a lease, and upon which he had been raising beets for about two years, was flooded and his crop of beets destroyed. From that time until October, 1908, when the personal property in question was attached, plaintiff engaged in the business of a teamster. During this time, however, he had retained his horses and some farming implements, intending to return to the farming business, and made various efforts to do so, but without success. In October, 1908, the defendant obtained a judgment against plaintiff in the superior court, upon which an execution was issued, and the personal property in question sold. After the property had been seized plaintiff demanded its return from the sheriff, upon the ground that he was a farmer and teamster, and that therefore the property was exempt from execution. Its return being refused, he commenced the present action.
The plaintiff in his complaint claims exemptions both as a farmer and a teamster. The case went to trial, and at the conclusion of plaintiff's case the court, upon motion of defendant, required plaintiff to elect whether he would claim exemption as a teamster or as a farmer. After excepting to the order, he elected to rely on his claim as a farmer, whereupon *751 the defendant moved for a nonsuit on the ground that there was no evidence showing that at the time of the taking of the property plaintiff was a farmer. This motion was granted by the court, to which ruling the plaintiff also duly excepted. The result is that while it is admitted in the brief of defendant that plaintiff was entitled to a teamster's exemption, he stands deprived of all exemption.
Plaintiff was not entitled to both exemptions. Subdivision 3 of section 690, Code of Civil Procedure, relates exclusively to exemptions in favor of judgment debtors who are farmers (Roberts v. Adams,
But we think it was competent for the plaintiff, being in doubt as to which exemption he was entitled to, to set forth both in his complaint, as was done in this case.
In the case of Wilson v. Smith,
We are also of opinion that the action of the court in granting defendant's motion for a nonsuit was erroneous. A motion for a nonsuit admits the truth of plaintiff's evidence, and of every fair construction, inference or presumption favorable to him deducible therefrom. (Archibald Estate v.Matteson,
In Caswell v. Keith, 12 Gray (Mass.), 351, it is said: "The distinction between withdrawing from the pursuit of a particular trade or occupation, with a determination never to resume it, and a temporary diversion from its prosecution while engaged in conducting some other business or enterprise not intended to be of permanent or durable continuance, is clear and definite. . . . To secure to himself the privileges and benefits intended to be conferred by the provisions of *754 the statute, an artisan is not required to ply his trade without any possible intermission or the occurrence of any interruption in its pursuit. If, for instance, owing to the general stagnation of business, he cannot for a season find remunerative employment in carrying it on, or if, from personal infirmity or other intervening impediment, it becomes necessary or expedient that he should resort temporarily to some other department of industry to obtain means of supporting himself and his family, he cannot, so long as he entertains an intention to return, as soon as circumstances will permit, to occupation and employment in his trade, be said to have given up or abandoned it."
Another case holding that one does not lose his right of exemption by reason of having temporarily suspended his occupation, if he intends to return to it when he has an opportunity, is Harris v. Haynes,
The judgment is reversed.
Cooper, P. J., and Hall, J., concurred.