Appeal from the Fifteenth Judicial District.

The plaintiff commenced an action of ejectment against the defendants, deraigning title from J. G. Doll, to two “town lots” lying in the town of Red Bluff. The complaint contained three counts; the first alleging seizin in Doll on the twenty-ninth of October, 1862, and that afterwards, on same day, he conveyed to plaintiff, etc.; the second alleging a seizin in plaintiff on that day, etc.; and the third, an unlawful entry into the possession of plaintiff by defendant. The answer denied, upon information and belief, the seizin of Doll and plaintiff, and set up adverse, actual possession in defendant-, A. Craig, and went on to state, that in 1855, the land was public, vacant, and unsurveyed land of the United States, and defendant entered and made improvements; that in 1853 the town of Red Bluff was laid out into blocks and streets; that under the Act of Congress of May 23d, 1844, the site of the town was reserved from sale, entry, and preemption, and has been used and claimed as a town site ever since; that the town was never incorporated; that previous to 1862, its inhabitants frequently requested the County Judge to make the requisite entry in the Land Office to secure the town site for the use of the inhabitants, and furnished him with money for that purpose, but that he refused to make the entry; that in 1862, the Board of Supervisors of Tehama County, on petition, appropriated three hundred and seventy-two dollars to purchase said land, and authorized the County Judge to make the proper entry, and that he tendered the money for this purpose in the Land Office; that Doll has resided in Red Bluff all the time since 1855, and knew these facts, etc.; that Doll, on the twenty-ninth of October, 1862, claimed the land embraced within the limits of the town, by virtue of a California School Land Warrant location, in his name, upon the same, embracing the premises in controversy; that said locar tion was fraudulently made, and that the proceedings of Doll, upon which it was obtained, have been set aside by an order of the General Land Office of the United States, and a rehearing of the contest between Doll and the inhabitants of Red Bluff granted; that evidence was taken before the Agent of the Land Office at Marysville, and forwarded to Washington City to the General Land Office for final decision, and that this proceeding is still pending and undetermined.

After filing the answer, and on five days’ notice, the defendant, A. Craig, moved on the twelfth of February, 1863, “that the further prosecution of this action, and all proceedings in the same, be stayed, and that said plaintiff be enjoined and restrained by an order of this Court from further prosecuting said action until the final decision of the contest, now pending before the General Land Office at Washington, for the land embraced in the town site of Red Bluff, between J. G. Doll and the inhabitants of the said town of Red Bluff, is had and obtained.” The notice stated that the motion was based on the answer and other papers in the case. To meet this motion, the plaintiff filed an affidavit stating that it was not true that Doll claimed the land by virtue of a School Land Warrant, but, on the contrary, that he claimed by virtue of a patent issued by the Governor of the State of California to him for the land, on the twenty-fourth of August, 1859, which patent was duly recorded in Tehama County, September 1st, 1859 ; and that defendant and his attorney knew that fact at the time of filing the answer.

The Court thereupon made the following order:

“W S. Rhodes v. Craig et al. Now comes W. H. Rhodes and files his affidavit resisting motion of defendants for a restraining order. It is ordered by the Court, after consideration thereof, that all proceedings in this action be and the same are hereby restrained and enjoined until the further order of this Court.”

From this order the present appeal is taken by plaintiff.