Majority
p. 376[S. F. No. 8120. In Bank. February 6, 1917.] MARY BOND, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent.
Headnote
Contempt—Taking Possession of Land by Party Legally Dispossessed—Alias- Writ of Possession—Appeal.—The amendment of 1907 to section 1210 of the Code of Civil Procedure does not give a right of appeal from an order adjudging guilty of contempt a party who. had retaken possession of real property from which he had been dispossessed under a judgment and process against him, and directing an alias writ to issue to restore the possession to the party entitled under the judgment.Id.—Stay of Execution Pending Appeal.—A provision in such order for a stay of execution in the event an appeal were taken from the portion thereof directing an alias writ of possession to issue will be annulled on certiorari.
In an action to quiet title to land pending in the Superior Court of Alameda County, in which the petitioner was the plaintiff and one Irving E. Smith was the defendant, a judgment was duly rendered in favor of the petitioner and against said defendant, under which the defendant was dispossessed and the possession delivered to the petitioner. The defendant having subsequently retaken possession of the premises, the court made an order adjudging him guilty of contempt-in so doing, and directing the possession to be delivered to the petitioner, and the issuance of an alias writ of possession for that purpose, the order containing a provision as follows: “If said defendant, Irving E. Smith, shall appeal from this order directing said alias writ of possession to issue, then and in that event the execution of this order shall be stayed if the defendant, Irving E. Smith, give the undertaking provided by section 1210 of the Code of- Civil Procedure of the state of California, provided for in case of an appeal from such order, the amount of which bond is hereby fixed and determined to be the sum of fifteen hundred dollars.
“All proceedings under this order are hereby stayed for the period of five days.”
The present proceeding in certiorari was brought to review this order.
p. 377
F. A. Berlin, for Petitioner.
George W. Reed, and L. D. Manning, for Respondent.
On the conclusion of the oral argument, the following opinion was rendered:
The court is of the opinion that the case is not distinguishable from Huerstal v. Muir, 62 Cal. 479 , that the amendment to section 1210 of the Code of Civil Procedure has not changed the law in the respect suggested, and does not grant or confer any right of appeal in such a matter, that under these circumstances Huerstal v. Muir, 62 Cal. 479 , controls, and the portion of the order complained of in this proceeding should be annulled.
It is so ordered.
Sloss, J., Melvin, J., and Lawlor, J., dissented.
Cases cited
- Huerstal v. Muir 62 Cal. 479 p. 377