Huerstal v. Muir

McKee, J. This is an appeal from an order subsequent to judgment.

The record of the case shows that Hugh Muir had been dispossessed of a parcel of land in Contra Costa County, by a writ of restitution issued upon a judgment of the late district court of that county, rendered in favor of L. Huerstal against the said Hugh Muir and one William Harding, for recovery of possession of said land and costs of suit. After Muir had been dispossessed by the writ he re-entered upon the land; and in proceedings against him for the re-entry he was adjudged guilty of contempt of court, and punished, and an alias writ of retsitution was ordered and issued, commanding the sheriff to put the plaintiff in the quiet and peaceful possession of the land. The [451]sheriff executed the writ by again dispossessing Muir; but finding Elizabeth Muir and Peter Baker, parties not named in the writ, in possession—one asserting adverse right to the land, and the other to the crops, partly cut and in part standing on the land—he made a “requisition” upon the plaintiff to apply to the court for an order for his protection in executing the writ against those persons. And upon motion of the plaintiff’s attorney, based upon an affidavit of the plaintiff, the court ordered said Elizabeth Muir and Peter Baker to show cause why they should not be ejected from said premises, and why the plaintiff should not be put in possession of the crop. Upon their answers the court made the following order: —

“ It is ordered that an alias writ issue upon the judgment herein to put the plaintiff in the possession of the land in said judgment described; that the said sheriff is hereby instructed and directed under the same, to remove from off said lands the said Hugh Muir and his wife, the said Elizabeth Muir, and his family, and give the plaintiff the full possession of said lands and every part thereof as against them and each of them; that said sheriff under said writ deliver to the plaintiff herein the crop of hay taken under the said first mentioned writ.” Appellants attack the order as erroneous on two grounds: (1) because it was made in a proceeding which was not authorized by law; (2) because a writ of restitution cannot be enforced against persons in possession of the lands who are not named in the writ, and were not parties to the judgment upon which it was issued.

It is true, as a general rule, that one who is not a party to the action, or privy to the defendant therein, cannot be dispossessed of land by a wit issued upon a judgment for recovery of possession. In Tevis v. Ellis, 25 Cal. 515, where a plaintiff in possession of laud applied for an injunction to restrain a sheriff from turning him out of possession under a writ of restitution issued upon a judgment to which he was not a party or privy, the Supreme Court denied his right to an injunction upon the grounds that he had no relation to the writ of restitution nor the writ to him .... and “if the sheriff should interfere with his possession, the writ would not only fail as a justification, but would be pertinent to convict the sheriff of an act of official oppression.” When, therefore, a sheriff is called upon to exe