Ford v. Doyle

By the Court, Sawyer, C. J.: This is an appeal from an order denying a motion for an order requiring the Sheriff to execute a writ of possession in the case of Ford v. Doyle et al. The proceedings and judgment in that case are altogether too loose and uncertain to justify the execution of the process issued against either of the parties named in the motion. There is no judgment against anybody, who appears by the record to be a party to' the suit. The complaint is against --Doyle, John Doe, and Richard Roe, without any averment to indicate that any of the names are fictitious, or intended to represent parties whose names are unknown. A summons issued, but there is no evidence that it was served on anybody. John Doyle answered. A trial of the issues thus raised having been had, no one appearing for the defendant, and the findings being in favor of plaintiff, judgment for possession of the premises described in the complaint, was rendered against James Doyle. How James Doyle got into the record does not appear. He is not named in the complaint, or in any [348]other portion of the record. It nowhere appears that he was a party intended to be sued by one of the names inserted in the complaint. He, therefore, does not appear to be a party to the suit, and the judgment might just as well have been against John Smith, or any other person, as against James Doyle. It does not appear that he was served, or that any default was entered against him. As he does not appear to be a party to the suit, we cannot presume that he has been served with process, or that he has had his day in Court.

The motion is for an order requiring the Sheriff to execute the writ of jDossession against James Doyle, Jr., James Doyle, Sr., and Catharine Doyle, neither of whom is a party to the action. Plaintiff insists that the affidavits show, that James Doyle, Jr., was in possession at the time of the commencement of the action, and that he has continued in possession ever since; and that James Doyle, Sr., and Catharine Doyle, are thus living with James Doyle, Jr., or at least living on the land in subordination to him. If this be so, since they are not sued, and were in possession at the commencement of the suit, they were in no way affected by the judgment, and the Court properly refused to direct the Sheriff to execute the writ against them. (Tevis v. Ellis, 25 Cal. 515; Calderwood v. Pyser, 31 Cal. 333; Wattson v. Dowling, 26 Cal. 125; Long v. Neville, 29 Cal. 131.) The error of appellant consists in assuming that James Doyle, Jr., was a defendant in the action, which assumption is not supported by the record. Sutter v. Cox, 6 Cal. 415; McNally v. Mott, 3 Cal. 235; and Farnham v. Hildreth, 32 Barb. 278, bear upon this question.