McLeran v. McNamara

Sharpstein, J.: This is an appeal from orders made by the Court perpetually staying execution of the writ of possession issued in this action, as to Mission Block No. 23, in the City and County of San Francisco. It appears by the affidavits upon which the orders appealed from Avere made, that this action in ejectment Avas commenced on the 3rd day of May, 1865, against a large number of defendants, to recover possession of a tract of forty-eight acres, Avitliin which Mission Block 2-3 was included. Among the defendants named in the complaint, were John Fitzpatrick, William Corcoran, Patrick Noon, Margaret Noon his wife, John N. Risdon, William Ware, Michael Wallace, and one Patterson. These defendants, Avith the exception of the two last named, claimed to be the owners and in the possession of Mission Blocks 22 and 23. Whether Patterson and Wallace were in possession of any part of the premises, does not appear by the transcript.

On the 19th of March, 1866, a stipulation,- of which the following is a copy, duly entitled in the cause, was filed in the office of the clerk of the Court in Avhich the action Avas pending:

“ The above entitled action is hereby dismissed and discon-' tinued as against defendants J. N. Risdon, sued as J. A. Risdon; Vt illiam Ware, Michael Wallace, sued herein as--; -Patterson, sued herein as--and also as against [510]and in regard to the blocks of land situated in the City and County of San Francisco, State of California, known and designated upon the official map of said city and county, as Mission Addition, or Mission Blocks, Nos. twenty-two (22) and twenty-three (23). March 17th, 1866.

“(Signed) Sloan & Provines, Plaintiff’s Attorneys.”

That Messrs. Sloan & Provines were the attorneys of the plaintiff at that time is not disputed, and it seems to be conceded that the signature is in the handwriting of Mr, Sloan, who, at that time, was a member of the firm, and who had this case particularly iri charge. He died on the 25th of August, 1866, and within the next eighteen months the surviving partner of the firm, Mr. Provines, substituted the present attorney of the plaintiff, in place of the former attorneys. On the 8th of November, 1872, said action was dismissed as to the defendants John Fitzpatrick and William Corcoran, on the ground that the summons had not been served upon either of them. The cause was afterward tried, and on the 7th of January, 1874, a judgment was rendered in favor of the plaintiff and against certain of the defendants as to whom the action had not been dismissed, for the possession of the premises described in the complaint, including said Mission Block No. 23. On the 6th of April, 1877, a writ of possession was issued upon the judgment, and placed in the hands of the Sheriff, who, by virtue thereof, was about to remove the defendants Corcoran, Noon and wúfe, and one Judson, the successor in interest of John Fitzpatrick, from said block No. 23, when, upon motion made upon affidavits, stating the foregoing facts among others, the Court granted the orders from which this appeal is taken..