Bowers v. Bob

46 Cal. 279 | Cal. | 1873

By the Court, Belcher, J.:

The plaintiff obtained a judgment against the defendants in an action of forcible entry and detainer, which was subsequently reversed. While the action was pending on appeal in this Court, the respondents, Blumenberg, Mendheim, Wangenheim, and Knack, who claimed to own the property as against both plaintiff and defendants, finding one Farley, an employé of the defendant Knight, in possession, purchased whatever fight of possession he had, and thereupon themselves took possession.

On the 12th of January, 1871, the remittitur from this Court having been filed in the Court below, and the action dismissed, the defendant, Knight, gave notice to the plaintiff that he would move the Court, on the twenty-first of January, for a writ commanding the Sheriff to restore him to the possession. The hearing of this motion was continued until the thirteenth of February, when it appearing that Blumenberg was in possession, claiming an interest in the property, there was a further continuance until the twentieth of February, and notice was directed to be served on Blumenberg, requiring him to appear and answer as to his interest.

The motion was heard on the twentieth of February, upon affidavits filed by the defendants and Blumenberg, and, thereupon it was ordered that the motion be granted, and “that a writ of restitution issue out of this Court, placing the defendants herein in possession of the premises and property described in the complaint, and of which said defendants were heretofore dispossessed under and by virtue of a judgment rendered in this Court on the 24th day of October, 1868, in the case of John C. Bowers v. Thomas Knight, et al.; which said judgment has by the Supreme Court been reversed and set aside.”

This order was subsequently modified so as to direct the writ to issue only in favor of the defendant Knight. In pursuance of the modified order a writ of restitution was issued, but its service was enjoined by one of the District Courts, and the injunction remained in force until the 26th of January, 1872, when it was dissolved. On the 31st of January, 1872, counsel for the defendant Knight obtained an ex parte order that an alias writ of restitution issue, and on the first of February an alias writ was issued, and placed in the hands of the Sheriff for service. On the second of February the respondent obtained an order on the ’defendant Knight and the Sheriff to show cause “why the said writ should not be recalled, vacated, and set aside.” On the fifth of February the motion was heard upon the affidavit of the defendant Knight, and thereupon, “ after a full hearing by the Court,” it was ordered that “the order to show cause why the alias writ of restitution issued herein, should not be set aside and vacated, be refused and denied.”

On the fourteenth of February the respondents presented to the Court new affidavits, and thereon obtained another order on the defendant Knight and the Sheriff to show cause why the alias writ should not be vacated and set aside. This motion was heard on the twenty-seventh of February, upon affidavits presented by the moving and contesting parties ; and thereupon it was “ ordered that the alias writ of restitution in favor of Thomas Knight, issued out of this Court on February 1st, 1872, be and the same is hereby recalled, vacated, and set aside.” From this last order this appeal is taken.

It is apparent that the order of February 20th, 1871, was improperly made. The respondents entered into the possession of the property by some collusion with the servant or employé of Knight, and not under the plaintiff. The plaintiff did not regain possession under the judgment he had recovered, nor did Knight loose his possession under or in pursuance of that judgment. He was not, therefore, entitled to process in that action to place him in possession as against the respondents. But if this be so, it is now claimed that when the order was made the Court lost all power to set it aside, and that at any rate when on the 5th of February, 1872, it refused to recall and set aside the alias writ its power in the premises was exhausted, and it had no jurisdiction to make the order from which this appeal is taken. The argument is that the matter was res adjudicada in that Court, and being appealable orders, if they were deemed to be wrong, relief should have been sought by appeal.

In Doyle v. Ford, 44 Cal. 635, in which there was an application for an alias writ of possession, we said: “The doctrine of res adjudicata, in its strict sense, does not apply to such motions made in the course of practice, and the Court may, upon a proper showing, allow a renewal of a motion of this kind once decided. But this leave will rarely be given, upon the ground that the moving party can procure additional evidence in support of his motion, unless it also appears that a new state of facts has arisen since the former hearing, or that the then existing facts were not presented by reason of the surprise or excusable neglect of the moving party.”

It is quite usual when a motion is denied, which the moving party desires to renew, to have the entry show that it was denied without prejudice. Leave to renew need not, how'ever, be given at the time of the denial. It may be given at any time afterward as well, and when given may be acted upon. In this case there must necessarily have been an application to the Court for leave to renew the motion, and the application must have been granted. This is evident from the fact that the Court entertained the motion for an order to show cause, and afterward, when the principal motion came on to be heard, entertained and granted it against the objections of the defendant. The application was addressed to the discretion of the Court, and there are various reasons suggesting themselves why it was exercised as it was. Only one of the respondents was notified of the motion heard on the 20th of February, 1871, and the motion heard on the 5th of February, 1872, was heard on the affidavit of Knight alone. It may be that the Court thought that the respondents should all have been notified in the first instance, and that their failure to present their affidavits on the fifth of February, was due to some mistake or excusable neglect.

We cannot say that the Court abused its discretion, and its order is therefore affirmed.

Mr. Chief Justice Wallace did not express an opinion.