Tevis v. Ellis

By the Court, Shafter, J. The complaint states that on the 20th of August, 1862, the plaintiff was, and is now, the owner in fee simple absolute of certain lots in the City of San Francisco, and that he is in the actual possession of the lots by his tenant.

That on the 20th of August, 1862, the plaintiff recovered a judgment for the possession of the lots in an action brought by him against Daniel O’Connell.

[517]That notice of Us pendens was filed in the Recorder’s office, March 13, 1862, the day the action was commenced.

That pending the suit, O’Connell made a deed of the premises to Calderwood, defendant herein, who thereafter defended the suit; and that on the 16th day of April, 1863, by virtue of a writ of restitution issued on the aforesaid judgment, the plaintiff was put in possession of the lots, and Calderwood was ousted therefrom.

That on the 8th of December, 1862, it was adjudged and decreed in another suit, brought by Calderwood against Tevis and others, that he, Tevis, was the owner of the lots, and entitled to the possession thereof.

That the defendant Wade has no title except under Calder-wood, acquired after the filing of the notice of Us pendens before named. *

That the defendants herein, in pursuance of a combination between them “ to obtain possession of said lots, and to compel the plaintiff to bring another action to obtain possession thereof, brought an action of ejectment in the Twelfth District Court, in the name of John Wade (one of the defendants herein,) against said Calderwood, C. B. Harwood and F. Kattendorff (also defendants herein,) to recover possession of said lands and premises.”

That the complaint in said action was filed March 10,1863, and judgment was entered therein by default June 5, 1863.

That a writ of restitution has been issued upon said judgment and is now in the hands of Ellis, Sheriff, etc., who threatens to execute said writ, and to remove plaintiff and his tenant from the possession of said premises, and will do so unless restrained by injunction.

That Calderwood, Harwood, and Kattendorff were, or some of them were, in possession of the lots, or some part thereof, at the date of the said judgment in Wade v. Calderwood. That the suit was brought by Wade at the instigation of Calder-wood, and that all the defendants therein suffered judgment by default, for the fraudulent purpose of enabling Wade to obtain