Hall v. Bru

[154]

SHENK, J.

This is an appeal by the defendants from an interlocutory judgment in an action in partition and also from an order made after the entry of the interlocutory judgment refusing to set aside the order confirming the report of the referee.

The plaintiff is the owner of seven-ninths of the real property in question. The defendants Bru are the owners of one-ninth and the defendants Schlaffer are the owners of one-ninth. The complaint is in due form. It alleges among other things that the premises are so situated that partition in kind cannot be made without great prejudice to the owners thereof, and prays that if the court so find, the premises be sold and the proceeds be distributed in due proportion. The defendants answered denying for lack of information and belief that the property cannot be partitioned in kind without great prejudice to the owners. At the trial all parties were present or represented. The plaintiff introduced evidence in support of the controverted allegation of the complaint. The defendants offered no evidence on the issue at that time, but it was stipulated that the court appoint a sole referee to ascertain and report to the court whether the property could or could not be partitioned without great prejudice to the owners. The referee was appointed and reported to the court that after due notice and in the presence of counsel for all parties he personally inspected and examined the premises and found that partition could not be had without great prejudice to the owners. Thereafter the plaintiff’s counsel duly served and filed a notice of motion for an order of court confirming the report of the referee. The motion was noticed for 2 o’clock P. M. on March 14, 1930, in the appropriate department of the superior court in Oakland. At the appointed time the plaintiff appeared with counsel, introduced evidence in support of the referee’s report and moved that the report be confirmed. The motion was granted, and on March 21, 1930, the court signed and filed its interlocutory decree ordering the property to be sold and appointing the same referee to conduct the sale. Thereafter defendant’s counsel moved the eoiu-t to set aside the order confirming the report on the ground that the order was taken through defendants’ inadvertence, surprise and excusable neglect as detailed in the affidavit of the defendant Bru confirmed by the affidavit of