FREDERICKSEN v. Alice Maude McCosker and Stanley McCosker, Defendants and Appellants.

Reset A A Font size: Print

District Court of Appeal, Third District, California.

Percy C. FREDERICKSEN and Marie B. Fredericksen, his wife, Plaintiffs and Respondents, v. James M. McCOSKER, Jr., et al., Defendants, Alice Maude McCosker and Stanley McCosker, Defendants and Appellants.

Civ. 8953.

Decided: March 27, 1957

Phil N. Crawford, Lakeport, for appellants. Lovett K. Fraser, Bruce B. Bruchler, Lakeport, for respondents.

This is an appeal by Alice Maude McCosker and Stanley McCosker from an order granting the issuance of an alias writ of possession and directing the sheriff to remove Alice M. McCosker and Stanley McCosker from the property which is the same as that involved in the proceeding appearing herein 308 P.2d 836.

The order granting said alias writ of possession recites in part that on December 10, 1951, a judgment was entered which quieted the Fredericksens' title in the Hand property against James M. McCosker, Jr., and Helen McCosker, his wife, as defendants; that on April 26, 1954, a writ of possession issued on said judgment, which on April 28, 1954, was served and returned by the sheriff with the notation that Alice M. McCosker and Stanley McCosker were served with said writ as the persons in possession of the real property, that they refused to deliver the possession thereof and denied claiming under James M. McCosker and Helen McCosker, his wife; and that thereafter an order to show cause why an alias writ of possession should not issue was made and served on Alice M. McCosker and Stanley McCosker, and a hearing thereon was held, following which the order under attack herein was issued.

The issue whether the decree quieting the Fredericksens' title to this property against James M. McCosker, Jr., and Helen McCosker, his wife, was binding upon the McCosker, senior, was considered by this court in Fredericksen v. McCosker, 143 Cal.App.2d 114, 299 P.2d 908 (hearing in Supreme Court denied). As noted in the opinion appearing in 308 P.2d 836, this court held that such judgment could have had no effect as to the interest of the McCosker, senior. We again hold that what was therein expressed conclusively determines the sole issue herein. It necessarily follows that the trial court's order granting the alias writ of possession was improper. Section 380, Code of Civil Proc.

The order is reversed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.