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Green v. Hebbard

95 Cal. 39 Court Department Two. Decision date 1892-06-17 Docket No. 15071 English

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[No. 15071.
Department Two.
June 17, 1892.]
HANNAH GREEN, Petitioner, v. J. C. B. HEBBARD, Judge of the Superior Court, Respondent.

Headnote

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
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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.
Application to the Supreme Court for a writ of mandate.
The petition sets forth a recoyery of the possession of a tract of land in an action of ejectment brought August 12, 1873, by William Ford, in the superior court of the city and county of San Francisco, against the husband of petitioner, B. S. Green, and other defendants, to which action petitioner was not a party. On the fourth day of August, 1881, judgment was entered in said action by default against said B. S. Green, and in favor of H. 0. Hyde, assignee of said Ford; and on November 20, 1888, a writ of possession was issued and executed by dispossessing certain tenants, and by petitioner, who was in possession of a certain part of the land, attorning to the plaintiff's successor in interest. The order granting this writ was subsequently annulled. On March 26,1892, R. S. Thornton, claiming to be a grantee of B. S. Green, procured an order without notice, awarding a writ of possession in his favor, which order both petitioner and plaintiff’s assignee moved to vacate, and that motion was denied on the thirty-first day of May, 1892. From the order denying this motion, petitioner sought to appeal, and moved the court to fix the amount of an undertaking to stay execution of the order to be appealed from. The motion was refused, whereupon petitioner presented this application for a writ of mandate to compel the fixing of the amount of the under, taking.
T. M. Osmont, for Petitioner.
Edward F. Fitzpatrick, for Respondent.

The petitioner is entitled to appeal from the order denying her motion to vacate or modify the

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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.

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