Davis v. Donner

22 P. 879, 82 Cal. 35, 1889 Cal. LEXIS 797

• Court: California Supreme Court
• Decided: December 12, 1889
• Docket: No. 12561
• Status: Published

Opinion

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.)

“ 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.)

Appeal dismissed.

Hearing in Bank denied.