Lawrence v. Davidson

44 Cal. 177 | Cal. | 1872

By the Court, Wallace, C. J.:

Two appeals are presented in this record; one by Davidson, taken from an order denying his motion to set aside a writ of possession and execution; the other by Mrs. Lawrence, from an order denying her application to dismiss Davidson’s motion for a new trial.

The motion for a new trial of the action appears to he still pending and undetermined in the Court below. The application made there to dismiss it -was based upon an alleged want of diligence on the part of Davidson in its prosecution, and an alleged non-compliance on his part with the rules adopted by that Court for its own government.

We think that the facts appearing in the record, so far from showing any reprehensible neglect, exhibit a remarkable degree of diligence on the part of the counsel of Davidson, who appears to have used every conceivable endeavor to hasten the proceedings on the motion for a new trial. We think that the Court below correctly denied the application of Mrs. Lawrence.

We think, too, that the motion to set aside the writ of habere facias was correctly denied. It was regular on its face, and recited a judgment duly rendered, by which Mrs. Lawrence had recovered certain lands, as described in her complaint, except a certain tract in the writ described, or purporting to be so. We are asked to determine that this description of the excepted tract is void for inherent uncertainty upon its face. If we should do so, it is not clear that Davidson would be much benefited; for it might be argued that the general tract recovered would then remain without any exception whatever. But however this may be, we cannot see upon the record that the description of the excepted tract is necessarily impossible or incapable of identification in the field. The Bay of San Francisco is an object referred to; the “Dows claim,” and the “Fairbanks claim,” which may, so far as we know, be well ascertained objects, are mentioned, too; and reference is also made to “ the topographical map made by the "United States Surveyor, A. D. 1857, offered in evidence.” To the Sheriff entering upon the general tract to deliver possession, this excepted portion may, for aught we can see, appear as well defined as is the block bounded by Washington, Jackson, Montgomery, and Sansome streets, in San Francisco. If this view needed any illustration, it is to be found in the fact that the Sheriff here had already delivered possession of the lands recovered before it was suggested to the Court below that the description contained in the writ was' void for uncertainty. Under the circumstances, the maxim “Id cerium esi,” etc., would seem to have been already practically applied. If the description of the land recovered is so imperfect as to be absolutely void, or if any particular piece of land from which Davidson has been removed is not included within the description, the latter is, of course, at liberty to establish the fact in any proper proceeding where that question could be determined.

The order denying the application to dismiss the motion for a new trial, and the order denying the motion to set aside the writ of habere facias, are affirmed.