Stone v. McCann

Citations

• 79 Cal. 460
• 21 P. 863
• 1889 Cal. LEXIS 752

Syllabus

<p>Homestead—Proceedings fob Appraisement under Execution — Pleading. — Under the provisions of the Civil Code for the appraisement of a homestead, no demurrer or answer to the petition is authorized. If the petition is sufficient under section 1246, and a copy thereof, with notice of the time and place of hearing, has been served upon the homestead claimant at least two days before the hearing, it is the duty of the judge, upon proof thereof, and of the facts stated in the petition, to appoint appraisers. The court should not allow an answer to the petition to be filed. The code does not contemplate any formal trial of issues, nor any findings, or new trials, but the homestead claimant is entitled to a hearing upon the application without any pleadings on his part. After the report of the appraisers, a time should be fixed for final hearing upon the evidence as to whether the homestead exceeds five thousand dollars in value, and whether it can be divided without injury.</p> <p>Id.—Hearing of Application for Appraisement — Continuance — Discretion — Mandamus. — The superior court, before appointing appraisers to appraise the homestead, though not authorized to allow time to the homestead claimant to file an answer to the petition for appraisement, yet has discretion to continue the hearing of the application for a reasonable time, to allow the homestead claimant to prepare for the hearing. A continuance of the hearing for five days at the request of the homestead claimant is not unreasonable, nor an abuse of discretion, and •mandamus will not issue to compel an immediate hearing, especially if the time granted has expired before the writ can issue. The order allowing an answer to be filed will be regarded as of no consequence, upon application for a writ of mandate.</p>