Opinion
[Syllabus Material] Rehearing Denied 10 Cal. 212 at 214.
Appeal from the District Court of the Thirteenth Judicial District, County of Mariposa.
Application to the Court below for a writ of mandamus.
It appears that Fremont commenced an action against a corporation called the Merced Mining Company, and Smyth Clark and John Vandewater, for a forcible entry upon " the upper drift of a shaft of a certain mine, called the Josephine Vein," in Mariposa County.
The jury rendered a verdict of guilty as to Clark and Vandewater, and not guilty as to the corporation. Judgment was rendered upon the verdict, awarding possession to plaintiff, and writ of restitution issued, which was placed in the hands of defendant for execution.
This process the Sheriff refused to execute, alleging as an excuse, first, that the mine was in the possession of neither Clark nor Vandewater, but certain persons claiming to hold under the Merced Mining Company, in whose favor a verdict of not guilty was returned; second, that since the entry of the judgment the tunnel described had been deepened, and that, under the writ, he could only put plaintiff in possession of such portion as had been excavated at the time judgment was recovered.
The Judge below, on application of plaintiff, awarded a peremptory mandamus against the officer, and from this order an appeal is taken.
COUNSEL:
Richard H. Daly, for Appellant.
Perley, for Respondent.
The return of the Sheriff sets out two facts as the reason why he does not execute the writ:
1. That Clark and Vandewater were not in possession, but other parties claiming under the Merced Mining Company, who were found not guilty.
2. That the shaft had been widened and deepened since the judgment of restitution, and he refused to give any possession, except of what was recovered.
The first affords no legal excuse or justification, and the second is frivolous, nonsensical, and absurd.
Returns to writs of mandamus are of three kinds:
1. Traverses.
2. Special returns of confession and avoidance.
3. A statement in the nature of a demurrer to the writ.
The return in this case belongs to the second class, but it is wholly uncertain and defective, both in form and in substance.
" It is incumbent on the defendant, in framing his return, to set out the whole legal facts of his case in extenso, in order that the Court may have the means of judging of the legality of the excuse. A special return must not only be good in substance, but must be expressed in apt words; or, in other words, the language and rules of pleading in personal actions should be adopted." (Tapping on Mandamus, 394.)
As to the force and effect of the writ of restitution.
This writ commands the Sheriff to do two things:
1. To turn out Clark and Vandewater.
2. To give plaintiff peaceable restitution of the property described in the writ.
The Sheriff returns that he did not find Clark and Vandewater in possession, but other persons claiming under the Merced Mining Company, who were found not guilty, and therefore he refuses to turn them out, and give plaintiff restitution.
This return is inveigling, uncertain, inferential, and argumentative.
The Sheriff had a writ emanating from a Court of competent jurisdiction, commanding him to give plaintiff restitution. There was nothing in it about the Merced Mining Company. Whether they were found guilty or not guilty, was none of his business. He refuses to execute the writ, but goes behind it, and looks into a judgment with which he had nothing to do. He then constitutes himself an Appellate Court, and determines the legal force and effect of the verdict not guilty, and his conclusion is, that this verdict found not only that the Merced Mining Company were in peaceable and quiet possession of the property, but that they were entitled to the possession as against Fremont and all the world.
It is useless to argue to this Court that nothing was found in favor of the company by the verdict of not guilty, as far as the property was concerned.
This verdict simply acquitted them of the forcible entry. The verdict showed conclusively that a forcible entry had been committed by Clark and Vandewater, two of the defendants, but not by the company.
The verdict showed that Fremont was peaceably in the actual possession at the time this forcible entry was committed, otherwise Clark and Vandewater could not have turned him out, and could not have been found guilty.
Now, I contend that the writ of restitution puts everybody out of possession holding adversely to the plaintiff.
The Sheriff cannot stop to determine whether a party is lawfully in possession or not. He must execute the writ. Its command is positive and peremptory to cause the plaintiff to have peaceable restitution of the premises.
The Sheriff is amply protected by a process valid on its face, and if he fears personal liability, he can call on the plaintiff for indemnity.
If the Sheriff should, under the writ, turn out anybody having a right to remain there, the remedy is by action.
" After judgment against A, in an indictment for forcible entry, under the writ of restitution, the Sheriff may turn out B whom A has put in possession." (State v. Gilbert, 2 Bay, 355.)
It may be argued that this is not a proper case for a mandamus; that there is another remedy by action against the Sheriff on his official bond.
Section 468, Practice Act, provides that the writ shall be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.
Section 467 provides that the writ may be issued to any tribunal, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.
In this case, the execution of the writ of restitution was a duty directly enjoined by law on the Sheriff, and immediately resulting from his office, trust, and station.
There is no other plain, speedy, or adequate remedy.
JUDGES: Terry, C. J., after stating the facts, delivered the opinion of the Court. Burnett, J., and Field, J., concurring.
OPINION
TERRY, Judge
The refusal of the Sheriff to execute the writ seems to be based on the hypothesis that the verdict of the jury was equivalent to a finding that the Merced Mining Company were in the lawful possession of the premises at the time of the trial.
The verdict is conclusive that the plaintiff was peaceably in actual possession of the premises at the time of the entry; that unlawful and forcible entry on his possession was made by defendants Clark and Vandewater, and that the Merced Mining Company did not participate in the trespass. The peaceable and actual possession of the plaintiff is incompatible with the lawful possession of another, and the verdict is conclusive against the possession of the Merced Mining Company.
The question then arises, whether, under the writ, the Sheriff is authorized to dispossess parties who are strangers to the proceeding.
The object of the statute concerning forcible entries, is to afford parties, whose possession is disturbed by force and violence, a summary remedy.
This object would be entirely defeated if a defendant, after judgment, could, by transferring the possession to a stranger, prevent the execution of the writ.
" If it were once permitted for a defendant, against whom there was a judgment on a forcible entry and detainer, to put in a third person, or for a third person to enter afterwards, with a view of again putting a plaintiff's title to the rack, such third person might again, in his turn, after judgment against him, put another in possession, or permit him to enter; so that there might be prosecutions without end, and the object of regaining possession by the plaintiff would be as far off as at the commencement of his first remedy to regain his possession, to the utter subversion of all justice." (State v. Gilbert, 2 Bay, 355.)
The second reason assigned for the refusal is frivolous, and requires no notice at our hands.
There being no error in the record, the judgment is affirmed.