Objection is made to the consideration of the statement on motion for a new trial, because, as is said, no notice of intention to move for a new trial Avas filed or served. We find in the transcript a stipulation on the part of defendant, giAnng the plaintiff further time within which to serve his statement on motion for new trial; and AArhen the statement was seiwcd on defendant’s attorney, the latter in acknowledging its receipt, reserved the right to object that the statement was not seiwcd in time, but at no time in the .court below objected to the settlement or consideration of the statement on the ground that proper notice of intention to move for a ucav trial had not been given. The court beloAV, in denying the motion, does not appear to have proceeded upon the supposed want of notice of intention, but upon the determination of the questions presented by the motion itself. We must presume, therefore, that the court beloAV found that proper notice was given, or that defendant had Avaived the objection.

The action is against the defendant, as sheriff, for his failure to execute a writ of possession issued on a judgment rendered in *222 one of the late County Courts in favor of the plaintiff, and against one James Canavan. The writ was placed in the hands of the sheriff by the plaintiff on the 18th of October, 1877, together with his fee for its execution. It appears that Canavan was not personally in possession of the property when the judgment was rendered, nor when the writ was placed in the hands of the sheriff, nor was he there in person at any time after-wards ; but his wife was; and the sheriff refused to dispossess her under the writ for the reason that prior to the judgment on which the writ was based, Mrs. Canavan had instituted a suit for a divorce from her husband, and was at the time of the rendition of the judgment and the issuance of the writ in possession of the property. On this state of facts the court below instructed the jury: —

“ In this case, if you are satisfied that prior to the rendition of this judgment in the County Court the Avife AAras in possession of that property, and had commenced an action of divorce against the husband, Avhich involved that A^ery property, then she was holding adversely to him and would not be bound by this AArrit, and the Avrit could not be executed against her; but, on the contrary, if you find from the testimony they were living there as husband and wife, or that she entered under the husband subsequent to the rendition of the judgment or the commencement of the action in the County Court, then she Avould be liable to the writ and should be removed; in other Avords, if she was holding there adversely to the husband at the time this action Avas commenced in the County Court, if she had commenced her action of divorce prior to that time, and was holding adversely to him, then it Avas the duty of the sheriff not to execute the writ of assistance against her, and he would not be liable.”

This instruction Avas erroneous. There Avas no testimony introduced tending to show any right to the property on the part of Mrs. Canavan, except such as she may ha\re had by reason of her marital relations Avith the defendant in the writ. Under the Avrit against the husband the AArife should have been dispossessed. (Saunders v. Webber, 39 Cal. 287 .)

Judgment and order reversed and cause remanded for a neAV trial.

*223 McKinstby; J., and McKee, J., concurred.

Hearing in Bank denied.