DAVID DAVIS et al., Respondents, v. JOHN DONNER et al., Appellants

[No. 12561. Department Two. December 12, 1889.] DAVID DAVIS et al., Respondents, v. JOHN DONNER et al., Appellants. Appeal—Dismissal—Non-apfkalable Order—Refusal to Set Aside Order — Writ of Assistance. •— An order granting a writ of assistance is appealable, as being an order made after final judgment; but a refusal to grant a motion of a party to the action to set aside such order is not appealable, and an appeal therefrom will be dismissed. The mere negative action of a court declining to disturb its first decision is not revisable. Appeal from an order of the Superior Court of Contra Costa County refusing to set aside an order for a writ of assistance. Upon foreclosure of a mortgage given by John Donner to David Davis and David E. Griffith, Simon Blum, a second mortgagee, became the purchaser under the decree, and after the time for redemption had expired, and he had received his deed, an order granting a writ of assistance was made upon his ex parte motion. The defendant John Donner moved to set aside the writ upon affidavits of himself and wife that a portion of the property was her separate estate. His wife, Sarah Donner, was not a party to the action, nor to the motion, excepting by her affidavit in aid of the motion of John Donner. The appeal is by the “ defendants ” in the action. A. H. Griffith, for Appellants. W. S. Tinning, Aylett B. Cotton, and W. H. H. Hart, for Respondents. [MAJORITY — The Court.] The Court. This is an appeal from an order refusing to set aside an order for a writ of assistance. The order that a writ of assistance issue was a special order made after final judgment, and therefore an appeal might have been taken from it. (Code Civ. Proc., sec. 963.) “ But defendants do not appeal from that order. They made a motion to set aside that order, and then appeal from the refusal to grant their motion. This is certainly not revisable; it is the mere negative action of the court declining to disturb its first decision. It is the decision which is the proper subject of complaint, and the refusal to alter it any number of times would not make it less so.” (Henly v. Hastings, 3 Cal. 341; Cal. S. R. R. Co. v. S. P. R. R. Co., 65 Cal. 295.) Appeal dismissed. Hearing in Bank denied.