Smith v. Jones

VAN DYKE,

J.

Mandamus to compel the respondent, as judge of the superior court of San Joaquin county, to’ render a decision and final judgment in an action of 'ejectment tried in his court, wherein the petitioners were plaintiffs and Thomas R. Smith defendant.

In his answer in the action of ejectment, the defendant therein, Thomas R. Smith, sets forth that on the twenty-seventh day of February, 1899, in a certain action then pending in said court, in which he, said defendant, was plaintiff, a judgment and decree was by said court duly given and made, whereby it was ordered, adjudged, and decreed that said defendant in the ejectment suit, plaintiff in the former action, was the owner in fee of the lands and premises described in the complaint in said ejectment suit, and that the defendants therein, the plaintiffs in the ejectment suit, were not the owners of, and that none of them had any, and never had any, right, title,

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or interest to the premises in controversy, or any part thereof, and that said defendants in that suit, the plaintiffs in the ejectment suit, were by said judgment and decree perpetually enjoined and restrained from asserting any claim to said property, or any part thereof, and that said action was still pending. An appeal from said judgment was taken to this court and remains undetermined.

In the return of the respondent herein to the alternative writ, it further appears that, after the testimony had be'en put in in said ejectment suit, the plaintiffs therein demanded judgment according to the prayer of their complaint, and th'e defendant thereupon asked that the cause be stayed until the said judgment set forth in his answer should become final; and th'e court on August 4th took a submission of all the matters in controversy in the case, and thereafter on August 28th, after reciting that it appearing to the court from the evidence taken in the action that a complete determination of the rights of the parties could not be had until the case of Thomas R. Smith against the petitioners herein, plaintiffs in the ejectment suit, now pending in th'e supreme court, could be determined, it was ordered that the submission of all the motions therein made on the 4th of August be s'et aside and all proceedings stayed, and the cause continued until the further order of the court.