Williams v. Wells Fargo Bank & Union Trust Co.

EDMONDS, J.

In a partition action brought by Flora J. Williams, the court rendered a decree ordering the property sold and the proceeds divided in proportion to the interest of each party. She then appealed from that decree upon the ground that the property should be partitioned in kind, and now seeks a writ of

supersedeas

to stay all proceedings authorized by it until the decision upon her appeal.

The controversy concerns 310 acres of land, one-quarter of which, the superior court decided, is owned by the petitioner. The remaining three-fourths was decreed to be owned by the respondent Wells Fargo Bank & Union Trust Company, as trustee. The court further determined that the petitioner is entitled to partition, but that as it cannot be made in kind without great prejudice to the owners, a sale of the property is necessary. By other provisions of the decree the court appointed referees and directed them to sell the land, subject to confirmation, reserving the right to allow and apportion attorneys’ fees, the expenses of salé, and costs in a final decree.

The petitioner contends that an appeal may be taken from an interlocutory decree which determines the rights of the

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parties and directs that a partition be made, and that the perfecting of the appeal stays all proceedings upon the decree appealed from. The respondent’s position is that no appeal lies from a decree which orders a partition of property by sale and not in kind. It is insisting upon a sale notwithstanding the pendency of the appeal, and the referees are proceeding to act under the provisions of the decree.

The decree appealed from is within the express terms of section 963 of the Code of Civil Procedure, which provides that “An appeal may be taken . . . from such interlocutory judgment in actions for partition as determines the rights and interests of the respective parties and directs partition to be made ...” It determines the ownership of the real property involved and describes it as that “herein ordered and adjudged to be partitioned and for the purpose of such partitionment . . . ordered and directed to be sold”.