Leese v. Clark

Citations

• 29 Cal. 664

Syllabus

<p>Order to compel Sheriff to execute Writ of Restitution.—At the hearing, under an order for the Sheriff to show cause why an order should not be made requiring him to proceed and execute a writ of habere facias possessionem, the burden is cast upon the Sheriff of establishing affirmatively the matters which he alleges as an excuse for refusing to serve the writ. (Fogarty v. Sparks, 22 Cal. 142, referred to in this connection.)</p> <p>Affidavits used on a Motion.—At the hearing of a motion tried on affidavits, if a copy of a deed under the control of the party relying upon it, to which there is a subscribing witness, is attached to an affidavit, and the party presenting the affidavit refuses to produce the original deed upon the demand of his adversary, and shows no excuse therefor, the copy of the deed is entitled to no weight as evidence.</p> <p>Who should be Removed under a Writ of Possession.—Prima facie, all who come into possession of land after an action is brought to recover possession of it must go out, if the plaintiff recover and a writ of habere facias possessionem is issued, for the presumption is, nothing appearing to the contrary, that they came in under the defendant.</p> <p>Effect of Service of Writ of Restitution.—A person found in possession of land, and turned out under a writ of habere facias possessionem, if he was not a party to the suit, is not prejudiced in his title, if he has any antedating the suit.</p>