North Pacific Coast Railroad v. Gardner
California Supreme Court
Appeal from a judgment of the Superior Court of Marin County, and from an order refusing a new trial. The proceeding was brought to compel the defendant, as sheriff of Marin County, to execute a writ of possession issued from a justice's court upon a judgment rendered therein in favor of the plaintiff for the restitution of certain premises described in the judgment and in the writ. The defendant demurred to the petition, and his demurrer was overruled.
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Appeal from a judgment of the Superior Court of Marin County, and from an order refusing a new trial. The proceeding was brought to compel the defendant, as sheriff of Marin County, to execute a writ of possession issued from a justice's court upon a judgment rendered therein in favor of the plaintiff for the restitution of certain premises described in the judgment and in the writ. The defendant demurred to the petition, and his demurrer was overruled. He then answered, setting up as an excuse for his refusal to execute the writ that he was unable to locate the premises by the description…
1Opinion of the CourtThornton, J.
We do not feel clear that a court of a justice of the peace can compel, on motion, a sheriff to execute a judgment rendered in such court, and punish him for contempt on his failure to obey its order. In such case, the party seeking the enforcement of his judgment can apply to the superior court for a writ of mandate (on the refusal of the sheriff to execute the writ of execution) to compel him to execute it.
We find no error in the record.
Judgment and order affirmed.
Sharpstein, J., Works, J., and McFarland, J., concurred.
Rehearing denied.
2Cited by3 opinions
- Magnaud v. TraegerCalifornia Court of Appeal · 1924
- Seagraves v. ScarboroughCourt of Appeals of Texas · 1917
- State ex rel. Clement v. StokesMissouri Court of Appeals · 1903