Horn v. Volcano Water Co.

Baldwin, J. delivered the opinion of the Court Field C. J. concurring. 1. In this case it seems from the record that sundry proceedings were taken in the Court below, originating in an order for a writ of assistance, and also in other orders of the Court refusing to set aside and restore the plaintiffs in the motion to the possession, of which they had been deprived by the execution of the first order. The notice of appeal recites that the plaintiffs will appeal from all these orders; but the undertaking only stipulates to answer for the consequences of an appeal from the order granting the writ of assistance. Of course we can only consider the error, if there be any, arising from or involved in this order. 2. The. writ of assistance was granted on the affidavit of Horn, who was the purchaser of certain ditch property under a decree of [143] foreclosure, the defendants in the motion for the writ (plaintiffs here) entering after suit brought and after notice of the Us pendens filed. It is objected that the proceeding does not show that the parties defendant to the motion were served with notice, and that the decree did not direct the delivery of the possession to the purchaser. The affidavit shows that demand was made for the possession of the premises of Head or his agent, before the application for the writ, and after Horn received the Sheriff’s deed. We do not see that the omission of the direction in the decree, that, possession be delivered to the purchaser at the foreclosure sale, is at all important. This direction, though usual, is not necessary. The legal effect of the decree is the same as with this direction. The decree ascertains the rights of the parties, and gives to the purchaser a summary right to be put in possession as against the mortgagor, and all others entering in subordination to his right after the commencement of the suit. As remarked by the Chancellor in Kershaw v. Thompson, (4 Johns. Oh. 609) “ when the Court has obtained lawful jurisdiction of a ease, and has investigated and decided upon its merits, it is not sufficient for the ends of justice merely to declare his right, without affording a remedy. If it was to be understood that after a decree and sale of mortgaged premises, the mortgagor or other party to the suit, or perhaps those who have been let into possession by the mortgagor pendente lite, could withhold the possession in defiance of the authority of this Court, and compel the purchaser to resort to a Court of law, I apprehend that the delay and expense and inconvenience of such a proceeding would greatly impair the value and diminish the results of sales under such a decree.” (See Montgomery v. Tutt, 11 Cal.) But it is scarcely necessary to go into this matter, for it seems from the record before us that Head moved to vacate and set aside this first order, granting the writ of assistance; and after a full hearing on that motion, the Court below refused to vacate this order; the judgment of the Court upon this last motion is still in force, and, as stated before, there is no appeal which we can consider, for want of an undertaking. So long as this last judgment remains in force, and not appealed from, the first order is not the [144] subject of appeal; since it would be of no service to the appellants to reverse the first order, and leave in force the last order affirming it. Besides, the appellants, having resorted to their summary remedy by motion to set aside the first order, and having tried this motion on the merits, cannot fall back upon the first order, and seek to .reverse it by direct appeal in this Court. If this were tolerated, appeals might be multiplied indefinitely, to the great cost and vexation of parties, without any corresponding benefit. Appeal dismissed.