Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1911-12-13

/ NitSh Hdo avn ny faSSOtldtC - 10
| tice Arno w. King of Ellsworth Is
as follows:
Petition for Writ of Mandamus.
| At the August term 1910 of the su-
preme judicial court for Sagadahoc
county, the petitioner. Joseph f.
Webster, recovered judgment against
| Francis Holmes for the possession of
certain real estate in Bath in that
| county. A writ of possession issued
upon said judgment and was placed
| in the hands of the Sheriff of Sagada
| hoe county, commanding him thai
without delay you cause the said
joseph f. Webster to have possession
of and in the said premises" The
sheriff did not execute the writ OF
possession, whereupon these pro-
ceedings for a writ of mandamus
against him were commenced. In
answer to the alternative y writ he
made return that he had not exc
cuted the mandate of the writ of pos
session because he was notified that
Francis Holmes, the defendant in said
writ of possession, was occupying a
part or all of said premises as the
tenant Of one Clara A. Holmes, who,
therefore AYERS, is the legal owner OF
a part or all of said described prem
Uses, and is, therefore, tenant in com
mon with the petitioner of said prem
Uses; that he was notified that said
Clara A. Holmes was in actual pos
session Of said premises and that any
attempt to GUST her from possession
would result in legal proceedings
against him; that. being in doubt
what course to pursue, he consulted
the attorneys of both the petitioner
and of said Clara, and urged them
to come TO some adjustment of the
matter, and by reason of his
doubt as to his legal right to actually
evict the said Francis Holmes, and
to Dust said Clara A. Holmes from her
possession, he has up to this time
ferborne to 90 so"
The said Clara A. Holmes presented
a motion to the Justice before whom
the proceedings We're pending in
which she set forth grounds on
which she claims to be an owner of
an undivided portion of the premises
described in the writ of possession,
aud that the execution of the writ
will be prejudicial to her rights and
interests in the property, and praying
that she might be permitted to in
tervcne rs a party defendant in the
Her motion to inter
vene was denied and, after hearing,
a decree was made that the peremp-
tory writ be granted. To that ruling
and decree exceptions were filed and
allowed. and certified to the Chief
Justice for decision under the pro-
visions of Sec. Is, Chap. 104, r. S.
Mandarnus is an appropriate and
necessary proceeding where petit
toner shows: Cd that his right to
have the act done. which is sought by
the writ, has been legally established;
{2) that it is the plain duty of the
party against whom the mandate is
sought to do the act, and in the doing
of which no discretion may be exer-
cised: (3) that the writ will be avail
ing, and that the petitioner has no
other sufficient and adequate remedy.
Held:
|. In the case at bar the petition
ers right to have immediate posses
sion of the real estate in question as
against Francis Holmes has been es-
tablished by a Judgment of the SUI
preme judicial court of this State.
which judgment has not been modified
or reversed but remains in full force
and effect.
.. That court has issued its man
date. the writ of possession, COM
handing the sheriff to cause the Pc
titioner forthwith to have the pos
session of the real estate in accord
ance with it's judgment. The duty of
the sheriff to do the act is therefore
plain. uneauivocal and ministerial. in
the discharge of which no discretion
-on his part is required.
g. The writ of mandamus will be
availing. The execution of its man
date will give the petitioner imme-
diately the benefit of his judgment,
possession of the premises. He has
no other sufficient and adequate rem
edy.
q. The matter set forth in the
sheriff's return to the alternative writ
does not justify his delay and for
bearance to execute the writ of pos
session. He points out no defect in
his precept. It was fair on its face"
and issued by court having complete
jurisdiction of the suit and the par
ties. and he was fully protected in fol-
lowing it's mandate.
5. The writ of possession was is
sued against Francis Holmes alone.
It was binding only upon him and
anyone claiming possession under him
since the beginning of the lis pendens.
Clara A. Holmes was not a party to
it. If she has title to an undivided
portion Of the premises her title is in
no way affected by the judgment in
the action of Webster against Fran
els Holmes, and the execution of the
writ of possession can take away none
of her rights in the premises. Her
motion to intervene was properly
overruled
Accordingly the entry must be ex-
ceptions overruled; peremptory writ
to issue as ordered.