62 P. 259 | Cal. | 1900
Appeal by defendants from an order granting a writ of assistance.
1. It is claimed that the court erred in shortening the time for hearing the application for the writ from five to three days.
The power to shorten the time is given by section
2. Appellant claims that the judgment-roll in this case was improperly admitted in evidence because the case is on appeal to this court and is deemed to be pending. (Citing Code Civ. Proc., sec. 1049; In re Blythe,
3. Appellant contends that in "order to obtain the writ it was necessary for plaintiff to have furnished the court proper evidence of a presentation of a sheriff's deed, a demand for the possession of the realty, and a refusal on the part of the defendant to surrender possession," and that the only evidence of these facts introduced by plaintiff was the affidavit of one of plaintiff's attorneys, which it is claimed, "cannot be proper evidence of anything." The affidavit showed that plaintiff had obtained a deed from the sheriff, and that affiant, for plaintiff, "presented said deed to defendant Ernest Graves, and demanded possession of said land; and that said defendant refused the same to the bank." The affidavit was uncontradicted and was proper evidence of the fact. (Code Civ. Proc., secs.
4. There is no evidence by affidavit or otherwise that the deed was presented to defendant Lucinda Graves, or any demand for possession made upon her.
It was admitted that both defendants were served with notice of the motion, and both defendants in fact appeared by counsel at the hearing, and both appeal to this court; the judgment-roll and the proceedings leading to sale and sheriff's deed were admitted over defendants' objection to their relevancy, materiality, and competency, the ground of objection being that the cause is pending on appeal to the supreme court. The papers on which the hearing was ordered *652 were objected to because no sufficient notice of plaintiff's application for a writ had been given and because the judge had not power to shorten the time for the hearing. No objection to the issuing of the writ was made on the ground that the deed had not been presented to Lucinda, nor on the ground that no demand for possession had been made upon her. She is spoken of in the briefs as the wife of Ernest, and she doubtless bore that relation to him. It does not appear what her interest in the property was. The judgment-roll is not printed in the record, nor are the proceedings subsequent to the decree, nor is the deed. Appellant now claims that it was error to grant the writ upon this evidence. It seems to me that it is sufficient in answer to appellants' contention to say that, in the absence of evidence to the contrary, we must presume that the evidence before the court showed that Lucinda had no such interest as required the deed to be presented to her and demand made upon her for possession after these steps had been taken as to her husband. Respondent suggests, with some reason, that the rule of practice which requires a demand before applying for the writ is a rule for the benefit of the court and not for the defendants; that the reason for making the demand is that the applicant for the writ can show to the court that he has no other remedy, without which the court of chancery would not aid him (Montgomery v. Tutt, supra); it is hence argued that having made the demand upon the husband, there was no necessity for showing like demand upon his wife. The difficulty in thus holding is that the wife and not the husband may have owned the mortgaged premises as her separate property, in which case demand upon her husband would not excuse demand upon her. The objection, however, in the present case, is obviated by the presumption already stated.
The order should be affirmed.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. Henshaw, J., McFarland, J. Temple, J.