Hyde v. Boyle

California Supreme Court Dec 15, 1894 No. No. 15504Published

Before: Harrison

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Holding. The court affirmed the denial of a motion to recall a writ of restitution, holding that it will not review a trial court's decision based on conflicting affidavits regarding the possession of land.

Issues

Whether the trial court erred in denying a motion to recall a writ of restitution where the evidence regarding the right to possession was based on conflicting affidavits.
Whether a plaintiff in an ejectment action is entitled to the same relief as a writ of assistance under a foreclosure decree.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the action of the court in denying the motion of the appellants must be affirmed, upon the ground that the decisions of the trial court, upon conflicting statements of fact, will not be reviewed by this court.”

“The conflict between the affidavits on behalf of the respective parties was at least sufficient to create a doubt in the mind of the court.”

Synopsis

Writ of Restitution—Reversal of Order—Rights of Appellant.— Upon a reversal of an order for a writ of restitution the appellant is entitled to be restored to all that he has lost by virtue of the order, and to be placed in the same position as he was prior to the execution of the writ, by the removal of all persons that have been placed in possession of the land by virtue of the writ, as well as of all those who have come in under him after that date.

Id.—Attornment of Tenant of Appellant—Eviction—Restoration of . Possession.—The eviction of one who was in possession of premises as the tenant of the appellant against whom a writ of restitution was issued, at the time the writ was executed, and against whom the writ was executed by the attornment of such tenant to the assignee of the plaintiff by his agent, was the eviction of the appellant, and upon reversal of the order for the writ, the appellant is entitled to be restored to the possession as against such tenant.

Id.—Order Refusing to Vacate Writ—Appeal—Conflicting Evidence. Upon an appeal from an order refusing to vacate a writ of restitution, where the evidence taken before the court upon the hearing of the motion was substantially conflicting, and there is evidence tending to show that the writ was rightfully issued, the order denying the motion will be affirmed.

Id.—Title Under Foreclosure—Writ of Assistance—Action of Ejectment.—In an ordinary action of ejectment the relief to be given is the same as that in any other action of ejectment, notwithstanding the plaintiff’s title is derived through a purchase under the foreclosure of a mortgage; and the plaintiff is not entitled in the action of ejectment to the same relief as if a writ of assistance had been asked for under the decree of foreclosure.

Harrison, J. This action was commenced August 12, 1873, by William Ford against Robert Boyle, Benjamin S. Green, and five others, for the possession of certain land in San Mateo county. The defendants other than Green answered the complaint, and upon a trial of the action a judgment of nonsuit was entered in their favor August 12; 1881. August 22, 1881, the plaintiff caused a judgment to be entered in his favor against the defendant Green, whose default for want of an answer had been entered October 10, 1873. Prior to the entry of these judgments Ford had been adjudged a bankrupt, and Henry 0. Hyde, who had been appointed his assignee in bankruptcy, was substituted as plaintiff in the action. Green died in 1882, and on the 20th of November, 1888, an ex parte order of the superior court was made upon an application on behalf of the plaintiff for the issuance of a writ of restitution upon the judgment against Green. The writ was issued, and on the next day was placed in the hands of the sheriff, who, on [105]the 23d of November, 1888, returned the same with his indorsement thereon that he had executed it according to its terms.- Certain tenants of the respondent Thornton were evicted under the writ, and afterwards reentered upon the lands, and on the 11th of March, 1889, the superior court made an order adjudging them guilty of contempt, and directing that an alias' writ of restitution issue. April 23, 1889, the respondent Thornton moved the said court to set aside its order of November 20, 1888, ordering a writ of restitution; also its order of March 11, 1889, adjudging his tenants guilty of contempt, and directing the issuance of an alias writ. This motion was denied May 24, 1889, and from this order Thornton appealed. Upon that appeal the order was reversed, and the superior court was directed to vacate and set aside the orders referred to in his motion. (Hyde v. Boyle, 93 Cal. 1.) After the remittitur had been filed in the court below that court made an order March 1, 1892, vacating and annulling its previous orders of November 20, 1888, and March 11, 1889, in accordance with the directions of this court, and also all orders and proceedings based thereon, and upon the application of Thornton made an order March 25, 1892, for the issuance of a writ of restitution directing and commanding the sheriff to remove all persons in possession of the land and premises described in said writ under the order made and entered on November 20, 1888, and to place Thornton in the quiet and peaceable possession thereof. Under this order a writ of possession was issued and placed in the hands of the sheriff for execution March 26,1892, and on April 8, 1892, the appellants herein moved the court for an order recalling the writ and vacating the order for its issuance, and directing that a writ of restitution upon the judgment in the action be issued in their favor, as the successors in interest of the plaintiff therein. This motion was denied, and from the order denying the same the present appeal has been taken. ^

Hyde v. Boyle

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