Fogarty v. Sparks

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. On the eleventh day of April, 1860, Fogarty brought an action to recover the possession of a certain lot in the City of San Francisco, against Z. W. Sparks, Wolf Light, and others, notice of the pendency of which was filed under the statute, June 2d, 1860, and judgment was rendered therein in favor of the plaintiff against the defendants, August 28th, 1860. On the second of October, 1860, execution was issued on the judgment and placed in the hands of Doane, as Sheriff, for service, who, in pursuance of the writ, dispossessed Wolf Light, one of the defendants, and placed the plaintiff in possession of part of the premises, but finding one' Kennelly in [148]possession of the other part, claiming as a tenant under Hervey Sparks, who was not a party to the action, he declined to dispossess Kennelly, or to put the plaintiff in possession of that portion of the premises ocuupied by him. The plaintiff then applied to the Court for a writ of mandamus to compel the Sheriff to put him in possession of that part occupied by Kennelly. The writ was granted, and the defendants have appealed from the order granting it to this Court.

The affidavit for the writ sets forth, in addition to the above facts, that Kennelly pretends to hold under a lease from E. B. Mastick, an attorney for 'Hervey Sparks, brother of Z. W. Sparks, and claims to have been in possession about two weeks before the date of the affidavit, October 5th, 1860; that Hervey Sparks pretends to have derived possession from Z. W. Sparks; that there was no house on the part of the premises in possession of Kennelly until after the judgment, and no person living thereon; that a house has been built thereon since the judgment, and Kennelly has taken possession of it; that it was built by the direction of Z. W. Sparks, and that Z. W. Sparks, in his answer filed in the action, admitted himself to be in possession of the premises.

Doane, in his affidavit, denies the material portion of the allegations in the plaintiff’s affidavit, upon information and belief, and avers, in like form, that Kennelly entered into possession as tenant under Hervey Sparks; that Hervey Sparks was the owner in fee simple on the twelfth of March, 1860, and ever since has been such owner and in possession of the premises ; that he was not made, a defendant in the suit, and his possession, or right of possession, was not determined by it. Ho proof appears to have been offered by either party on the motion for a mandamus.