Demartin v. Demartin

California Supreme Court Jul 30, 1890 No. No. 12514Published

Before: Belcher

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Holding. The court held that when an insolvent debtor petitions to set apart a homestead, the burden of proof lies with the objecting creditors to demonstrate that the property's value exceeds the statutory exemption limit. Consequently, in the absence of such proof, the court is required to grant the petition, and the failure to make findings of fact is not reversible error where the burden of proof was not met.

Issues

Whether the burden of proof regarding the value of a homestead lies with the petitioner or the objecting creditors.
Whether the court is required to make findings of fact when no evidence is introduced by the party bearing the burden of proof.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under the circumstances appearing here, we think the burden was upon the objecting creditors to show that the value of the premises asked to be set apart as a homestead exceeded the limit of exemption”

“If no direct evidence be introduced upon any issue, the finding should be against the party who had the burden of proof.”

Synopsis

Appeal from an order of the Superior Court of Del Norte County, setting apart a homestead to an insolvent debtor.

The facts are stated in the opinion.

Belcher, C. C. This is an appeal from an order setting apart a homestead to an insolvent debtor.

The facts are these: On the twenty-second day of October, 1887, Louis Demartin filed his petition in insolvency, and on the same day he was adjudged to he an insolvent debtor, and - a time was appointed for his creditors to meet and prove their debts and choose an assignee of his estate. Annexed to the petition were the requisite schedules and inventory, in which a portion of the real property was described as petitioner’s homestead, and the value thereof was placed at five thousand [73]dollars. On the 5th of November, following, he presented to the court another petition, asking to have the property described as a homestead set apart as such for his use and benefit. This petition stated that the petitioner had executed, acknowledged, and filed for record a declaration of homestead, in proper form, on the premises which he asked to have set apart, and that at the time of so doing he was and ever since had been residing thereon with his family, and that the same did not exceed in value the Sum of five thousand dollars.

On the 7th of November the attorney for two of the creditors of the insolvent filed his affidavit (giving the reasons why it was made by him), setting forth that Demartin filed his declaration of homestead on the twenty-ninth day of September, 1887; that he filed his petition in insolvency on the twenty-second day of October; that he petitioned the court to have said homestead set apart to him on the fifth day of November; and that, as affiant was informed and believed, the value of the premises selected as a homestead was from eight thousand to ten thousand dollars; and praying the court, before setting the same apart, to appoint three persons to appraise the value thereof and return their appraisement to the court.

On the 10th of November, the court set the matter for hearing on the next day, at ten o’clock, a. m. At the time set for the hearing, the attorney for the objecting creditors did not appear, and thereupon, on motion of counsel for the petitioner, no evidence being offered by him, and there being nothing before the court except the papers before mentioned, an order was made and entered setting apart for the use and benefit of the petitioner as a homestead all of the premises described in his petition.

1. It is claimed for appellants that the order was erroneous, and should be reversed, because no evidence was offered on behalf of respondent showing that he

Demartin v. Demartin

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