People v. Grant

45 Cal. 97

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,471
• Status: Published

Opinion

By the Court:

1. Lowe was not the holder of the Sheriff’s deed in the sense of the statute. The “ holder” of such a deed is the person who is the grantee therein named, and not a subsequent vendee of such grantee. It results that the provision of the statute permitting a writ of assistance to be issued upon the application of the holder of the Sheriff’s deed, did not authorize such a writ to be issued in favor of Lowe.

2. The purchaser from the grantee of the Sheriff' having, by intrusion into the case, and without notice to the tenant or his landlord, obtained an order for the writ, the latter had no remedy except a motion to set it aside, or had he been evicted under the writ, a motion to be restored to the possession—in which latter case there can be no doubt that he could have appealed from an order denying his motion. In no other way could he become a party upon the record so as to enable him to support an appeal. The cases in which we have held that the appeal should be taken from the order itself, as originally entered, and not from a subsequent order refusing to set it aside, are cases in which the party might have prosecuted an appeal from the original order. We have never held that any one was concluded by the lapse of sixty days from the entry of an order from which he had never had an opportunity to bring an appeal. Had Tormey appealed directly from the order of May 13th, 1872, the appeal must have been dismissed here, upon the ground that he was not a party upon the record, and unless he could be permitted to move in the Court below to set that order aside, he would be left without remedy.

Order reversed and cause remanded, with directions to set aside the order of May thirteenth.