Rafftery v. Kirkpatrick

MARKS, J.

This is an appeal from an order denying the motion of C. L. Cunningham to vacate an order directing the issuance of a writ of assistance and to recall the writ.

On April 6, 1931, Helen Louise Kirkpatrick and her husband were the record owners of four lots in Perris, in Riverside County, which is the property involved in this action. On that day, together with her husband, Leonard Kirkpatrick, she executed a mortgage on this property to secure a prom

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issory note for $750 payable to Kate Rafftery, due one year after date, with interest at eight per cent per annum. The note was not paid when due. Interest was not paid after April 6, 1934, and taxes were not paid by the mortgagors.

This action to foreclose the mortgage was instituted against the mortgagors on March 25, 1935. A decree of foreclosure was rendered and entered on June 17, 1935. The property was sold to plaintiff at a commissioner’s sale on July 10, 1935. After the expiration of a year a commissioner’s deed was issued to her. C. L. Cunningham was found in possession of the property. Demand for possession of the premises was made on him, which he refused.

On September 2, 1936, plaintiff filed a petition for a'writ of assistance which was granted

ex parte.

The writ was issued on the same day. On September 12, 1936, C. L. Cunningham, appearing specially for that purpose, filed a notice of motion, supported by his affidavit, for an order vacating the order for the issuance of the writ and recalling it. Counter-affidavits were filed by and on behalf of plaintiff and a hearing was had on September 21, 1936, at which Cunningham testified in his own behalf. The trial court denied Cunningham’s motion and this appeal followed.

The decree of foreclosure contained the following:

“That if any of the parties to this action who may be in possession of said premises, or any part thereof, or any person ■who, since the commencement of this action, has come into possession under them, or either of them, refuse to deliver possession thereof to such purchaser or purchasers, on production of the Commissioner’s Deed for such premises, or any part thereof a writ of assistance may, without further notice, be issued to compel such delivery to the purchaser.”