Industrial Loan & Investment Co. v. Superior Court

SHAW, C. J.

The petitioner recovered a judgment in the superior court of the city and county of San Francisco against Cameron H. King for a certain sum of money. On the twenty-eighth day of August, 1922, he filed a transcript of said judgment and an affidavit of his attorney setting forth that money was due and unpaid thereon and that the transcript and affidavit were so filed for the purpose of holding up the salary of said King as an employee of the said city and county for payment by warrant of said auditor for the month of July, 1922, and applying the same

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on said judgment; that said King threatens that he will make an affidavit to the judge claiming said salary, under section 690, subdivision 10, of the Code of Civil Procedure, as exempt from execution, and said judge threatens that if said affidavit is presented he will sign an order releasing the said salary warrant of said King for the month of August, 1922. Wherefore, he asks a writ of prohibition to prevent the judge from signing such an order.

Petitioner avers that the defendant in signing the note upon which the judgment was founded waived the exemption laws by inserting the following clause in said note: “The parties to this instrument, whether maker, indorser, surety or guarantor, each for himself, hereby severally waive as to this debt, or any renewal thereof all right of exemption under the constitution and laws of California or of any other state, as to personal property.”

He claims that by virtue of this clause in the contract defendant has waived all exemption provided by the statute.

In making this claim he is relying on the decisions of this court in

Keybers

v.

McComber,

67 Cal. 400 [7 Pac. 838] ;

Borland

v.

O’Neal,

22 Cal. 506, and

Stanton