Davis v. Donner
California Supreme Court
Appeal from an order of the Superior Court of Contra Costa County refusing to set aside an order for a writ of assistance. Upon foreclosure of a mortgage given by John Donner to David Davis and David E. Griffith, Simon Blum, a second mortgagee, became the purchaser under the decree, and after the time for redemption had expired, and he had received his deed, an order granting a writ of assistance was made upon his ex parte motion.
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Appeal from an order of the Superior Court of Contra Costa County refusing to set aside an order for a writ of assistance. Upon foreclosure of a mortgage given by John Donner to David Davis and David E. Griffith, Simon Blum, a second mortgagee, became the purchaser under the decree, and after the time for redemption had expired, and he had received his deed, an order granting a writ of assistance was made upon his ex parte motion. The defendant John Donner moved to set aside the writ upon affidavits of himself and wife that a portion of the property was her separate estate. His wife, Sarah…
1Opinion of the Court
The Court.
This is an appeal from an order refusing to set aside an order for a writ of assistance. The order that a writ of assistance issue was a special order made after final judgment, and therefore an appeal might have been taken from it. (Code Civ. Proc., sec. 963.)
*36“ But defendants do not appeal from that order. They made a motion to set aside that order, and then appeal from the refusal to grant their motion. This is certainly not revisable; it is the mere negative action of the court declining to disturb its first decision. It is the decision which is the proper subject of complaint,…
2Cases cited2 opinions
- California Southern Railroad v. Southern Pacific RailroadCalifornia Supreme Court · 1884
- Henly v. HastingsCalifornia Supreme Court · 1853
3Cited by2 opinions
- Mills v. SmileyIdaho Supreme Court · 1903
- Blyth & Fargo Co. v. SwensonUtah Supreme Court · 1897