41 Cal. 501 | Cal. | 1871
This appeal is from an order, restoring the respondent to the possession of a piece of land, from which he was removed under a writ of restitution issued in an action to which he was not a party. The proof shows satisfactorily that he was in the actual possession at the commencement of the action, holding adversely to the plaintiff, and of course was not bound by the judgment or amenable to the wilt of restitution issued thereon. It is equally plain on the proofs that the pretended and colorable possession of Christy was collusive, and that his nominal and temporary occupation, such as it was, had no other purpose than to afford a pretext to the plaintiff, on which the possession might be taken under the writ. If the Court improperly admitted in evidence the. record in the case of Bensley v. Christy et als., it was an error which did the appellant no injury, inasmuch as there was ample evidence without this to justify the order restoring the respondent to the possession.
Order affirmed.