50 Cal. 289 | Cal. | 1875
There was no necessity for an amendment of the judgment. It was rendered October 2, 1869, in the lifetime of the plaintiff, and recorded October 1, 1874, after his death. Nor was there any necessity to amend the writ of execution, for though it erroneously recited that the judgment had been rendered on the first day of October, 1874, still it otherwise correctly referred to the judgment in such a manner as to identify it. In these respects the order below was erroneous; but, we think that under the circumstances appearing, the motion to restore the defendants to possession was correctly denied. The writ, though issued after the death of the judgment plaintiff, and in his name, was, in point of fact, issued and executed at the instance and for the benefit of Yan Nest, who is conceded to be the successor of the judgment plaintiff. Had he, as such successor in yiterest, applied regularly for the writ in the first instance, the court would have awarded it to him. What has been done is therefore correct in substance, though irregular in point of mere procedure. It is hardly worth while to turn Yan Nest out, when it is clear that he must be immediately put back again into possession.
The order as entered below is reversed, and the cause remanded, with directions to enter an order denying the motion, but awarding the moving parties their costs in the court below, and upon this appeal.
