Pacific States Savings & Loan Co. v. Harwell

PRESTON, J.

This is an appeal in the above-entitled proceedings from an order refusing the motion of one G. M. Harwell to recall and annul a writ of assistance theretofore issued and still outstanding in said proceedings, the same being in foreclosure. Respondent received the sheriff’s deed and sought and secured the writ complained of, the command of which is as follows:

“Therefore we command you that immediately after receiving this writ you go to, and enter upon, the said piece or parcel of land above described, and that you eject the said defendants S. B. Harwell and Nannie A. Harwell, and any and all persons claiming under them, or either of them since the commencement of the above-entitled action, and all persons claiming to have acquired any interest or estate in the premises subsequent to the filing of the

Lis Pendens

in the above-entitled action that may be in possession of said premises, and all and every other person or persons holding or detaining the said premises—and that you deliver to said C. Zanola, or his assigns, the possession of said premises without delay—and him, the said C. Zanola, or his assigns, from time to time, maintain, keep, and defend, or cause to be kept, maintained and defended, according to the true intent of said decree.”

This writ does not in terms mention appellant. Appellant asserts that as a tenant of respondent he is in possession of the premises and for that reason asks that said writ be recalled and annulled. The trial court treated the motion of appellant as proper, heard it upon evidence, both oral and documentary, and later refused to grant the relief sought, holding in effect that appellant was not a tenant of respondent but in reality a trespasser upon the premises.

The facts of this case bring appellant within the exception to the general rule that one may not appeal from an

[372]

order refusing to vacate and annul an appealable order. Appellant, being a stranger to the proceeding, could not have appealed from the original order, but by connecting himself with the cause and having been given the status of a mover by the court, he may appeal.