California Quicksilver Mining Co. v. Redington

By the Court, Crockett, J.: In an action of ejectment, brought by the California Quicksilver Mining Company against Livermore, Mahon and Cherry, to recover a cinnabar mine, judgment was entered for the plaintiff, on which a writ of restitution was issued, under which, it is claimed, Eedington, Meara and Aidlecamp, who were not parties to the action, were removed from the mine, and they afterwards moved upon affidavits to be restored to the possession. The motion was resisted upon counter affidavits, and was denied by the court, and the moving parties appeal from the order denying the motion.

It is incumbent on a party seeking relief in a summary proceeding of this character to make out a clear case, free from ambiguity. A plaintiff in ejectment who recovers a judgment, perhaps after a protracted and expensive litigation, ought not to be deprived of the fruits of it, except in a case free from all reasonable doubt. The opportunity for collusion is so great, and the fraud is often so difficult of detection, that courts are reluctant to grant such relief on ex parte affidavits, except in cases clearly made out, and free from any reasonable suspicion of fraud or collusion.

Recognizing this as a sound and salutary rule, we think the moving parties have failed to make out so clear a case as entitles them to relief by this summary process. If Bedington and his associates are bound by the judgment in the ejectment suit, they ought not to be restored to the posses[162]sion. On the other hand, if they are not bound by the judgment, they can have their action in the ordinary form to recover the possession; and, under the circumstances disclosed in the affidavits, we think they should be restricted to that remedy.

Order affirmed. Remittitur forthwith.

Mr. Justice Rhodes did not express an opinion.