Lorenz v. Jacobs

53 Cal. 24

Opinion

By the Court :

Proceedings may be instituted by any of the cotenants of real property, as provided in the Code of Civil Procedure, (sec. 752) for a partition thereof according to their respective rights, or for a sale thereof, if it appear that the partition cannot be made without great prejudice to the owners. But whether partition is to be ordered or a sale directed, it is indispensable that a decree, interlocutory in its character, be first entered, definitely ascertaining the rights and interests of the respective parties in the subject-matter. In case a sale is to be directed, it is impossible for any party, in the absence of such- an interlocutory decree, to know whether he is interested in maintaining or in resisting the proceedings.

The interlocutory decree entered below in this case is entirely silent as to the quantity of interest of either of the parties to the proceedings, and is erroneous in that respect. It is true that the Court has announced certain conclusions of law which, if they should be adhered to below, would go far to furnish the basis for such a decree; but the parties cannot bring an appeal from these conclusions, but only from the interlocutory decree itself, which decree, when properly entered, will become conclusive of their respective rights, unless such appeal be taken therefrom within sixty days from its entry in the minutes of the Court. (Code of Civil Procedure, sec. 939, subdivision 3.)

Decree and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith.