Ford v. Doyle

44 Cal. 635

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,281
• Status: Published

Opinion

By the Court, Biles, J.:

The motion for an alias writ of possession was substantially a renewal of the motion previously made and denied for an order requiring the Sheriff to execute the first writ of possession issued upon the judgment.

The doctrine of res adjudicata, in its strict sense, does not apply to such motions made in the course of practice, and the Court may, upon a proper showing, allow a renewal of a motion of this kind once decided. But this leave will rarely be given upon the ground that the moving party can produce additional evidence in support of his motion, unless it also appears that a new state of facts has arisen since the former hearing, or that the then existing facts were not presented, by reason of the surprise or excusable neglect of the moving party.

In this case no new facts have arisen since the former hearing, and none are presented which were not presumably within the knowledge of the plaintiff at the time the former motion was made. The service of summons had then been made in the manner now shown by the return, and the Court may very well have been satisfied that the plaintiff or his counsel knew, or should have known, the facts of the service and return. The return was a part of the record, and, if lost or mislaid, proper proof of its contents might have been made. The Court below exercised its discretionary judgment in the matter, and we see no reason to interfere with it.

Order affirmed.