Davis v. Donner

Decided December 12, 1889

California Supreme Court · decided 1889-12-12

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.

Cited by 1 later decisions — most recently December 1903

1 state decisions

Relies on California Southern Railroad v. Southern Pacific Railroad · Henly v. Hastings

Good law ✅— No negative treatment on recordhow we know

Decided 1889-12-12

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The Court.

¶1This 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.)

¶2 *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, and the refusal to alter it any number of times would not make it less so.” (Henly v. Hastings, 3 Cal. 341; Cal. S. R. R. Co. v. S. P. R. R. Co., 65 Cal. 295.)

¶3Appeal dismissed.

¶4Hearing in Bank denied.