Mayberry v. Whittier

The petition for rehearing is denied.

In the opinion heretofore rendered it is assumed that the release of the levy on the black stallion occurred before the decree dividing the community property. In the petition *Page 328 for rehearing our attention is called to the dates shown in the transcript, and upon further examination we find that this was an error. It appears that the levy on this horse and the release occurred nearly a year after the decree, and that after the release, and before the second levy, this horse was pledged by Mayberry, and was afterwards sold by him for one thousand dollars. There is no other evidence of its value. It is not a matter of much importance to the disposition of the case, inasmuch as, after crediting all other sums which the court finds plaintiff is entitled to have credited upon the Whittier judgments against E.L. Mayberry, there still remains a balance thereof unpaid amounting to over forty thousand dollars. The only benefit to plaintiff to be derived from a finding as to the value of this horse would be an additional credit of such amount on the judgment, and this slight benefit would not justify a retrial of all the other issues in the case. Nevertheless, the plaintiff is entitled to have the value of said horse credited on said judgments before the same are enforced against her allotment of the community property, provided it was not exempt or free from the execution at the time it was released. For the purpose of giving this relief a new trial of that issue will be necessary.

The judgment and order are affirmed as to all matters and things found and determined thereby, except as to the said black stallion. The cause is remanded to the court below, and that court is directed to take evidence and make an additional finding upon the question of the levy upon said black stallion by virtue of the execution on the judgment in Mayberry v. Whittier, the subsequent release thereof, the value of said stallion when released, and whether or not it was then subject to said execution, and if it shall determine that it was then subject thereto, and that said execution was levied thereon and afterward released; then to make a supplemental decree to the effect that the value thereof shall be credited upon one of the said judgments before either of them shall be enforced against the property set apart to Emily Gray Mayberry by the decree of divorce from Edward L. Mayberry. Further proceedings to enforce said judgments are stayed until the entry of such supplemental decree. Each party shall pay his own cost on this appeal.

Rehearing on modification of judgment denied.

*Page 329