California Mortgage & Savings Bank v. Graves

CHIPMAN, C.

Appeal by defendants from an order granting a writ of assistance.

1. It is claimed that the court erred in shortening the time for hearing the application for the writ from five to three days.

The power to shorten the time is given by section 1005 of the Code of Civil Procedure. The order of the court reads i “Good cause appearing to me therefor, it is ordered,” etc. There is nothing in the record to dispute this recital, and we must presume that the necessity for the order was made to appear, and that the power was rightly exercised.

2. Appellant claims that the judgment-roll in this ease was improperly admitted in evidence because the case is on appeal to this court and is deemed to be pending. (Citing Code Civ. Proc., sec. 1049;

In re Blythe,

99 Cal. 472;

Naftzger v. Gregg,

99 Cal. 831;

Murray v. Green,

64 Cal. 363.) But section 945 of the same code provides that if the judgment appealed from “direct the sale .... of real property, the execution thereof cannot be stayed, unless a written undertaking be executed on the part of the appellant .... that he will not commit any waste thereon, and that if the judgment be affirmed, or the appeal dismissed, he will pay the value of the use .... of the property,” etc.; and “where the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must provide for the payment of

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such deficiency.” JSTo stay bond was given in the present case, but simply the ordinary appeal bond as provided by section 441 of the Code of Civil Procedure. The cases cited by appellant do not reach the point made by him. The evidence was admissible, and the writ could issue notwithstanding the appeal.

(Montgomery v. Tutt,

11 Cal. 190.)

3. Appellant contends that in “order to obtain the writ it was necessary for plaintiff to have furnished the court proper evidence of a presentation of a sheriff’s deed, a demand for the possession of the realty, and a refusal on the part of the defendant to surrender possession,” and that the only evidence of these facts introduced by plaintiff was the affidavit of one of plaintiff’s attorneys, which, it is claimed, “cannot be proper evidence of anything.” The affidavit showed that plaintiff had obtained a deed from the sheriff, and that affiant, for plaintiff, “presented said deed to defendant Ernest Graves, and demanded possession of said land; and that said defendant refused the same to the bank.” The affidavit was uncontradicted and was proper evidence of the fact. (Code Civ. Proc., secs. 2002, 2009.) Section 2009 provides that “an affidavit may be used .... upon a motion.” It was said in