The Court finds that the respondent was in possession of the premises at the commencement of the action, and that he was wrongfully dispossessed; and this finding is in strict accordance with the facts. The respondent was not a party to the action, and was not holding under or in privity with any of the parties thereto. The proceedings by which the respondentwas dispossessed, including the action and judgment, were concocted, carried on, and consummated by the plaintiff and defendants as a fraudulent and collusive scheme to get possession of the premises; and the papers in the case of Bensley & Mason v. Christy, Farrington, and others, tend to establish these facts, and were properly given in evidence. It appears from them that the attorneys for the plaintiff in this action are the attorneys for Christy and Farrington in that case; and that there they are making a strong and persistent defense. Here, however, the plaintiff has been allowed to take judgment by default; the action being commenced and the judgment rendered during the pendency of the other case. The inference of collusion is irresistible; but there is additional evidence of the fact. In order that the service of the writ should be easy and unobstructed, it was necessary that some preliminary arrangements should be made, and Christy appears as the man to make them. He found a person who was willing to serve him in the character of tenant, and this person, being surreptitiously introduced upon the premises, was found there when the Sheriff went to serve the writ; and onanswering that he was the tenant of Christy, the Sheriff turned him out, together with several head of cattle belonging to the respondent. Comment is unnecessary. The whole matter was a fraudulent and collusive contrivance, of which the respondent was the unfortunate victim.
If the Court should hold that the papers in Bensley v. Christy were inadmissible, we claim that the error could not have prejudiced the plaintiff, the case being fully made out by other evidence. The only question is, whether the respondent was properly dispossessed, and the facts show clearly that he was not. The law applicable to these facts has been laid down by the Court in numerous cases. (Watson v. Dowling, 26 Cal. 125; Tevis v. Ellis, 25 Cal. 515; Rogers v. Parish, 35 Cal. 128.)
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
This appeal is from an order, restoring the respondent to the possession of a piece of land, from which he was removed under a writ of restitution issued in an action to which he was not a party. The proof shows satisfactorily that he was in the actual possession at the commencement of the action, holding adversely to the plaintiff, and of course was not bound by the judgment or amenable to the writ of restitution issued thereon. It is equally plain on the proofs that the pretended and colorable possession of Christy was collusive, and that his nominal and temporary occupation, such as it was, had no other purpose than to afford a pretext to the plaintiff, on which the possession might be taken under the writ. If the Court improperly admitted in evidence the record in the case of Bensley v. Christy et als., it was an error which did the appellant no injury, inasmuch as there was ample evidence without this to justify the order restoring the respondent to the possession.
Order affirmed.