Tormey v. Allen

45 Cal. 119

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,405
• Status: Published

Opinion

By the Court:

The order of the Court below in this cause cannot be supported in point of practice. We held in Regan v. McMahon, 43 Cal. 625, that the practice prescribed in the Practice Act, as to the granting of new trials in civil actions, was applicable to the review of decrees rendered in proceedings on partition. Section one hundred and ninety-three defines the grounds upon which, and section one hundred and ninety-five the procedure by which, such motions may be made and determined, and there is hardly a conceivable case in which, under the provisions of the Act, relief may not be had, if irregularity, accident, or surprise, or any other misfortune- by which the substantial rights of the parties, or any of them, have been sacrificed, have intervened. An action for a partition is as completely within the operation of the Act as any other civil action for the conduct of which rules of procedure are therein prescribed.

Order reversed, and cause remanded.