Gregory v. Blanchard

Citations

• 98 Cal. 311
• 33 P. 199
• 1893 Cal. LEXIS 915

Syllabus

<p>Execution—Sale—Delivery of Possession—Mandamus__A purchaser of property at an execution sale, to whom the judgment debtor refuses to deliver the property, is not entitled to a writ of mandate to compel its delivery by the judgment debtor.</p> <p>Id—Office of Writ of Mandate—Title not Triable.—The writ of mandate is never employed for the purpose of trying title to property, whether the property be the right to land, or to an office, or to a franchise.</p> <p>Id.—Franchises—Sale under Execution—Limited by Statute.—A franchise cannot be levied upon or sold under execution in the absence of a statutory provision therefor, and whenever such a provision exists, the extent as well as the mode of levy and sale are limited thereby.</p> <p>Id.—Sale of Toll Road — Private Franchise not Subject to Execution.— Section 338 of the Code of Civil Procedure, providing that for the satisfaction of any judgment against a corporation authorized to receive tolls, its franchise may be sold under execution, limits the franchises which may be sold under execution to those owned by corporations, and does not authorize the sale of a franchise held by an individual.</p> <p>Id—Franchise not Capable of Manual Delivery—Improper Judgment—Insufficient Determination of Rights. —A franchise is merely a privilege not capable of manual delivery, and a provision in a judgment against the owner of the franchise, requiring him to deliver the possession thereof to the judgment creditor, is not susceptible of execution; and a further provision therein that he deliver “ the possession of all property necessary for the exercise of the powers and the receipt of the proceeds of said franchise” is too indefinite to constitute a determination of the rights of the parties. The court should determine what property is “necessary” in the exercise of the powers of the franchise, and not leave it to the arbitrament of the judgment debtor.</p>