Green v. Hebbard (1892) · DecisionDepot

Green v. Hebbard

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 17, 1892 No. No. 15071Published

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Holding. The court held that the petitioner has a right to appeal the denial of her motion to vacate or modify a writ of possession and that the respondent must fix the amount of the undertaking required to stay the writ's operation.

Issues

Whether the petitioner is entitled to appeal an order denying a motion to vacate or modify a writ of possession.
Whether the respondent is required to fix the amount of an undertaking to stay a writ of possession under section 945 of the Code of Civil Procedure.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“Having the right of appeal, it is the duty of the respondent upon her application to fix the amount of the undertaking necessary to stay the operation of the writ of possession, under section 945 of the Code of Civil Procedure.”

Synopsis

Appealable Order — Order Refusing to Vacate Order for Writ of Possession—Motion by Stranger to Record. — An appeal lies from an order denying the motion of one not a party to the record to vacate or modify an order for a writ of possession.

Id. — Stay op Execution—Duty of Court to Fix Bond —Mandamus. — One having a right of appeal from such order may insist upon the duty of the court to fix the amount of the undertaking necessary to stay the operation of the writ of possession, under section 945 of the Code of Civil Procedure, and the discharge of such duty may he compelled by writ of mandate.

Id. — Merits of Appeal not Considered. — Upon application for a writ of mandate to compel the court to fix the amount of a bond to stay execution, the merits of the ruling appealed from cannot he considered.

The Court. The petitioner is entitled to appeal from the order denying her motion to vacate or modify the [41]order made in the action of Hyde v. Boyle, for the writ of possession. (People v. Grant, 45 Cal. 97; City of San José v. Fulton, 45 Cal. 316.) Having the right of appeal, it is the duty of the respondent upon her application to fix the amount of the undertaking necessary to stay the operation of the writ of possession, under section 945 of the Code of Civil Procedure.

We cannot upon this present application consider whether the court was right or wrong in its ruling upon petitioner’s motion to vacate or modify the order for the issuance of the writ of possession, as the questions which would be involved in such an appeal are not before us.

Ordered that a peremptory writ of mandate issue in accordance with the prayer of the petition.

Hearing in Bank denied.

Green v. Hebbard

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