City of Los Angeles v. Forrester

McCOMB, J.,

pro

tem.

This is an appeal by plaintiff from an order of the trial court denying a motion after judgment for an order directing issuance of a writ of possession.

March 24, 1914, judgment was entered in favor of plaintiff quieting its title to certain land located in Elysian Park, Los Angeles, California, then occupied by defendants. In 1919, 1920, 1926 and 1927 plaintiff obtained orders directing the issuance of writs of possession. Pursuant to these orders two writs were issued and returned unexecuted and two were never issued.

In 1931 an

ex parte

application for an order directing the issuance of a writ of possession was granted and a writ of possession was issued. March 24, 1932, on motion of the de

[148]

fendants an order was made vacating the

ex parte

raider for a writ of possession without prejudice to an application for an order for a writ of possession on notice. April 25, 1934, after notice to defendants a motion for a writ of possession was heard and denied.

The single question presented for determination is

•Was it an abuse of discretion for the trial court fo deny plaintiff’s motion for a writ of possession made after the lapse of more than five years from entry of a judgment quieting its title to public park land? \\

Defendants urge that the trial court’s order should be sustained for the reason that

First: The record before this court is insufficient fqr a review of the questions presented upon this appeal.

Second: Section 685 of the Code of Civil Procedure vests in the trial court the discretion to deny such a motiop when sufficient reasons for the delay in applying for a writ of possession are not set forth in affidavits accompanying the motion.

Third: It would be inequitable for plaintiff to enforce a writ of possession because defendants in reliance on plaintiff’s conduct have made improvements upon the property which they occupy.