Bowers v. Bob
Before: Belcher
Synopsis
Writ to bb Restored to Possession in Forcible Entry.—If the plaintiff obtains judgment in -an action of forcible entry and detainer, but docs not obtain possession of the properly, and a writ of restitution is not issued, and the judgment is afterwards reversed and the action dismissed, and during tlio pendency of the action third parties obtain possession of the property by collusion with a servant of the defendant, the defendant is not entitled to a writ to be restored, to possession as against these third parties.
Idem.—A defendant in forcible entry, against whom judgment is rendered, which is afterwards leversed, but who does not lose possession of the property under or through the judgment, is not entitled to be restored to possession as against third parties who have ousted him during- the pendency of the- action.
. Renewal of Motion once Denied.—A moiion made, in the usual course of practice, which has once been denied, may be renewed by leave of the Court; and, unless there is an abuse of discretion in granting this leave, the order will not bo disturbed by the Supreme Court,
By the Court, Belcher, J.: The plaintiff obtained a judgment against the defendants in an action of forcible entry and detainer, which was subsequently reversed. While the action was pending on appeal in this Court, the respondents, Blumenberg, Mendheim, Wangenheim, and Knack, who claimed to own the property as against both plaintiff and defendants, finding one Farley, an employé of the defendant Knight, in possession, purchased whatever fight of possession he had, and thereupon themselves took possession.
On the 12th of January, 1871, the remittitur from this Court having been filed in the Court below, and the action dismissed, the defendant, Knight, gave notice to the plaintiff [284]that he would move the Court, on the twenty-first of January, for a writ commanding the Sheriff to restore him to the possession. The hearing of this motion was continued until the thirteenth of February, when it appearing that Blumenberg was in possession, claiming an interest in the property, there was a further continuance until the twentieth of February, and notice was directed to be served on Blumenberg, requiring him to appear and answer as to his interest.
The motion was heard on the twentieth of February, upon affidavits filed by the defendants and Blumenberg, and, thereupon it was ordered that the motion be granted, and “that a writ of restitution issue out of this Court, placing the defendants herein in possession of the premises and property described in the complaint, and of which said defendants were heretofore dispossessed under and by virtue of a judgment rendered in this Court on the 24th day of October, 1868, in the case of John C. Bowers v. Thomas Knight, et al.; which said judgment has by the Supreme Court been reversed and set aside.”
This order was subsequently modified so as to direct the writ to issue only in favor of the defendant Knight. In pursuance of the modified order a writ of restitution was issued, but its service was enjoined by one of the District Courts, and the injunction remained in force until the 26th of January, 1872, when it was dissolved. On the 31st of January, 1872, counsel for the defendant Knight obtained an ex parte order that an alias writ of restitution issue, and on the first of February an alias writ was issued, and placed in the hands of the Sheriff for service. On the second of February the respondent obtained an order on the ’defendant Knight and the Sheriff to show cause “why the said writ should not be recalled, vacated, and set aside.” On the fifth of February the motion was heard upon the affidavit of the defendant Knight, and thereupon, “ after a full hearing by
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