Green v. Hebbard

California Supreme Court June 17, 1892

Green v. Hebbard, 95 Cal. 39 (Cal. 1892)

30 P. 202; 1892 Cal. LEXIS 783

Opinion of the Court

The Court.

The petitioner is entitled to appeal from the order denying her motion to vacate or modify the *41order made in the action of Hyde v. Boyle, for the writ of possession. (People v. Grant, 45 Cal. 97; City of San José v. Fulton, 45 Cal. 316.) Having the right of appeal, it is the duty of the respondent upon her application to fix the amount of the undertaking necessary to stay the operation of the writ of possession, under section 945 of the Code of Civil Procedure.

We cannot upon this present application consider whether the court was right or wrong in its ruling upon petitioner’s motion to vacate or modify the order for the issuance of the writ of possession, as the questions which would be involved in such an appeal are not before us.

Ordered that a peremptory writ of mandate issue in accordance with the prayer of the petition.

Hearing in Bank denied.

Reference

Full Case Name: HANNAH GREEN v. J. C. B. HEBBARD, Judge of the Superior Court
Cited By: 11 cases
Status: Published
Syllabus: Appealable Order — Order Refusing to Vacate Order for Writ of Possession—Motion by Stranger to Record. — An appeal lies from an order denying the motion of one not a party to the record to vacate or modify an order for a writ of possession. Id. — Stay op Execution—Duty of Court to Fix Bond —Mandamus. — One having a right of appeal from such order may insist upon the duty of the court to fix the amount of the undertaking necessary to stay the operation of the writ of possession, under section 945 of the Code of Civil Procedure, and the discharge of such duty may he compelled by writ of mandate. Id. — Merits of Appeal not Considered. — Upon application for a writ of mandate to compel the court to fix the amount of a bond to stay execution, the merits of the ruling appealed from cannot he considered.