Kerr v. Brawley

Mr. Justice Hand delivered the opinion of the court: This is a petition for a writ of assistance. This writ is a summary proceeding. (City of San Jose v. Fulton, 45 Cal. 316.) Its object is to put a person who has purchased at judicial sale under a decree in chancery, into possession of the premises. (Jones v. Hooper, 50 Miss. 510.) It will only issue against a party to the suit or one who has come into possession pendente lite. (Gilcreest v. Magill, 37 Ill. 300.) The interests of other persons will not be adjudicated in this summary manner. (Paine v. Root, 121 Ill. 77.) It will never be issued where there is any reasonable prospect that the party in possession may make a successful defense of his possession, either at law or by the aid of a court of equity, (Flowers v. Brown, 21 Ill. 270,) and it will never be exercised in a case of doubt, nor under color of its exercise will a question of legal title be tried or decided. (Schenk v. Conover, 2 Beasley’s Ch. 220; 78 Am. Dec. 95.) In this proceeding, like that of forcible entry and detainer, the question of title as between the plaintiff and the defendant, or any one else, cannot be tried. It is only a question of the right to possession. A freehold is therefore not involved, and this court is without jurisdiction to entertain this appeal. The appeal will be dismissed, with leave to the appellant, if he desire, to withdraw the record. Appeal dismissed.