Judson v. Molloy

SANDERSON, J. This is a motion by one dispossessed under a writ of habere facias possessionem to be restored, upon [505]the ground that he was in possession at the time the action was commenced, and, not having been made a party to the action, was therefore unaffected by the judgment. The only question is one of fact. The moving party presented a number of affidavits showing that he was in the actual possession, by himself or tenants, prior to and at the time of the commencement of the action. On the other side affidavits were offered showing that he entered, after the action was commenced, under or through one of the defendants. The court below found the fact in favor of the moving party, and made an order restoring him to the possession. There is nothing which would justify this court in setting aside the finding of the court below. The fact being as found, the order was in accordance with the law.

Order affirmed.

We concur: Sprague, J.; Sawyer, C. J.; Crockett, J.; Rhodes, J.