Batchelder v. Moore

By the Court, Wallace, J.: Upon certiorari to the County Court of the City and County of San Francisco.

Batchelder having recovered judgment against Moore only, in an action of forcible entry and detainer, instituted in the County Court, the latter was removed from the possession of the premises under a writ issuing upon that judgment. •

Subsequently Batchelder. filed an affidavit in the County Court, in which, after reciting the fact of his recovery against Moore, he alleged that Moore was ejected under the writ, and the affiant placed in possession; that thereafter one Clark intruded into the premises, and took possession thereof; that, on the same day that Clark entered, one Hickey brought an action in the District Court of the Twelfth District against Clark, to recover the premises from the latter, and that, by consent, a judgment in favor of Hickey and against Clark was immediately rendered, and on the next day Clark was removed, and Hickey placed in possession, under a habere facias issued upon that judgment; that the possession taken by Clark, and the action brought against him by Hickey, were induced and procured by Moore and one David Calderwood, the petitioner here.

[414]The affidavit of Batchelder further alleged, that “ Calder-wood never had any right to, or claim to, or possession of, said lots of land, or any part thereofthat at the time of the trial of the action of Batchelder v. Moore, “ Calderwood pretended to he in possession of said lots of land, or to have some right thereto under said Moore, or as the principal of said Moore, and not otherwise;” and that the entry of Moore in the first instance was as an agent of Calderwood as well as in his own right, and that the possession taken by Clark, and the action brought against the latter by Hickey, were really procured by Moore and Calderwood, to evade and defeat the judgment and writ in the case of Batchelder v. Moore, and, therefore, amounted to contempt of the process of the County Court.

Upon presentation of this affidavit the County Court directed Moore and Calderwood to show cause before it why they should not be punished for contempt in the premises. The parties appeared, and upon hearing the proceeding was dismissed as to Moore, but Calderwood was adjudged guilty of the contempt alleged against him, in the willful violation of the writ of restitution issued in the case of Batchelder v. Moore, through the instrumentality of the possession taken by Clark, and the recovery against the latter by Hickey; and for his contempt in that behalf it was adjudged that he be imprisoned in the common jail of the City and County of San Francisco for the space of five days, and pay a fine of five hundred dollars, and that he be imprisoned until the fine be paid, etc.