Title Guarantee & Trust Co. v. American Power & Construction Co.

Woodward, J.: What useful purpose this appeal is intended to subserve is not quite clear. The plaintiff brought an action to foreclose a mortgage made to it by the American Power and Construction Company and such proceedings were had that the usual judgment of foreclosure and sale was entered. The sheriff sold the property under the. provisions of the judgment, and delivered a deed to. Charles E. Robertson and William E. Verity, the respondents. Messrs. Robertson and Verity displayed their deed of the premises to the defend, ants and demanded possession, which was refused. The respondents then procured an order to show cause “why a writ of assistance should not issue herein in due form commanding the sheriff of the county of Kings to put the said Charles E. Robertson and William E. Verity in possession of the premises referred to in the complaint [193] and maintain him and his assigns therein, after ejecting therefrom any and all other parties defendants who may be in possession.” This motion was granted, the defendants offering no affidavits Or proof in contradiction of the allegations of the moving papers, and the sheriff of the county, acting under such writ or order, has put the respondents into possession of the premises. The defendant American Power and Construction Company appeals. So far as we are able to discover, the appeal is based upon the idea fhat because the authority-to the sheriff to put the respondents in possession of the premises took the form of a writ of assistance instead of an order of the court, the defendants are entitled to a reversal of the order directing the issue of the writ. Section 1675 of the Code of Civil Procedure provides in actions of this character that “ if a party, or his representative or successor, who is bound by the judgment, withholds possession from the person thus declared to be entitled thereto, the court, besides punishing the disobedience as a contempt, may, in its discretion, by order, require the sheriff to put that person into possession. Such an order must be executed as if it was an execution for the delivery of the possession of the property.” An execution for the delivery of the possession of real property, or a chattel, must particularly describe the property and designate the party to whom the judgment awards the possession. thereof; and it must substantially require the sheriff to deliver the possession of the property within his county to the party entitled thereto. (Code Civ. Proc. § 1373.) This is exactly what the writ of assistance now before us does, and the fact that the order of the court takes the form of a writ of assistance, under the direction of the order issued upon an order to show cause why such writ should not issue, is entirely too technical to merit relief to the appellant. The writ is made in. pursuance of an order of the court; it conforms to the essential requirements of section 1675 of the Code of Civil Procedure, and bears the indorsement of the county judge who made the order directing such writ. The writ is, in effect, a part of the order directing its issue; it is identified with the order by the indorsement of the county judge, and while it is very likely true that it would have been the better practice to have included the necessary matter in the order directly, no substantial right of [194] the defendants has heen infringed, and it is only where a substantial right is affected that a party has any right of appeal. (Code Civ. Proc. § 1347.) The granting of a motion to give a party possession tinder the facts in this case is discretionary. (Code Civ. Proc. § 1675.) In the matter now before us the defendants were in default in not showing cause, if any existed, why the writ should not issue, and in such a case there is no right of appeal. . (Code Civ. Proc. §1294; Matter of Stapleton, 71 App. Div. 1, 8, and authorities there cited.) Under the circumstances we are of Opinion that the proper course is to dismiss the appeal, as it is evident that the defendants have no standing in this court upon their appeal. The appeal should be dismissed, with costs and disbursements. All concurred. Appeal dismissed, with ten dollars costs and disbursements.