Perfection Paint Products v. Johnson

PETERS, P. J.

Plaintiff has a final judgment against defendant for over $3,800. Plaintiff levied execution on defendant’s wages. Defendant claimed that such wages were entirely exempt because all of his earnings were necessary for the support of his family, supporting such claim by the required affidavit. Plaintiff filed an affidavit in opposition. A hearing was had. No transcript of that hearing has been filed. The trial court entered a minute order to the effect “that Thirty-eight Dollars ($38.00) of the monthly wages is subject to execution.” Defendant appeals.

Plaintiff has failed to file a brief in support of the order. In such event, under rule 17(b) of the Rules on Appeal “the court may accept as true the statement of facts in the appellant’s opening brief.” The court may assume that the point urged on appeal is meritorious.

(Postin

v.

Griggs,

66 Cal.App.2d 147 [151 P.2d 887];

Bendlage

v.

Kohlsaat,

54 Cal.App.2d 136 [128 P.2d 691].) But this does not mean that the case will automatically be reversed. The burden to show error is on appellant. Therefore, the court must examine appellant’s brief to see if the points raised are meritorious, and, if found not to be meritorious, should affirm. (See generally 4 Cal.Jur.2d § 496, p. 334.)

In his affidavit claiming the exemption defendant lists his income as $348 per month and his “necessary monthly expenses” as $375.50. Included in the list are “Installment

[741]

Contracts—$71.00” and “Incidentals—$25.00.” Appellant states in his brief that he and his wife testified at the hearing as the only witnesses; that appellant testified that he is regularly employed by Crown Paint Company and receives from them $348 monthly as wages; that his wife works intermittently as a domestic, averaging about $16 a week from this source.

Appellant claims that on such a record, as a matter of law, he is entitled to an exemption of all of his wages under section 690.11 of the Code of Civil Procedure. That section provides that one-half of the earnings of a wage earner for a fixed period are exempt from execution without filing a claim and that “All of such earnings, if necessary for the use of the debtor’s family, residing in this State, and supported in whole or in part by such debtor” are exempt, upon filing a claim therefor unless the debts are incurred “for the common necessaries of life” or for personal services of an employee of the debtor. Of course, whether such earnings are “necessary for the use of the debtor’s family” presents a question of fact.