Order £[ade Without Notice.—An order made without notice to the other party maybe set aside without notice to the party who procured it.
Ejectment.—The bare pendency of proceedings for the condemnation of land is not a valid defense in ejectment.
Summary
Appeal from the District Court of the Twelfth Judicial District, County of San Mateo.
The defendant is a corporation owning a franchise to construct and maintain a wharf and chute at Pigeon Point, San Mateo County. In June, 1872, it commenced proceedings for the condemnation of lands adjoining its wharf, alleged to be necessary to carry on its business and connect its wharf and chute with the most convenient highway. On ex parte application to the Judge of the Court it obtained an order authorizing it to take possession of the land and use it during the pendency of the proceedings, giving a bond for the payment of compensation in case the land should be condemned, or of damages if it should not be. Defendants entered into possession under the order; but a few days afterwards, and on the 8th day of October, 1872, the plain tiff in this action applied to the Judge, ex parte, and obtained another order vacating the previous order, on the ground that it had been improvidently and improperly granted. The defendants still retaining possession, this action was brought to eject them. The answer sets up the first order as a defense, claiming the right to the possession until the proceedings for the condemnation of the land should be determined. The plaintiff submitted the case upon the pleadings and the orders. He had judgment, and the defendants appealed.
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Opinion of the Court
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By the Court:
Under the statute orders made without notice may be set aside without notice. If the Judge, at chambers, could make the order of September twenty-seventh—a point we do not decide—then he could set it aside at chambers. If the last order was void, then the first was void for the same reason.
Judgment affirmed.
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