Bartlett v. MacKey
Before: THE COURT.
Synopsis
Petition—Appeal from Interlocutory Judgment.—An appeal from an interlocutory judgment in an action for partition, taken more than sixty days after the entry of the interlocutory judgment, is too late, and must be disregarded.
Id.—Sale—Material Injury from Partition—Pleading—Evidence.— It is not essential to aver in the complaint that partition cannot be made without material injury and great prejudice to the owners, to justify the admission of evidence to that effect, and to warrant an order of sale of the property.
Id.—Support of Finding—“Great Prejudice to Owners.”—A finding that “partition cannot be made without great prejudice to the owners,” is sufficiently supported by the testimony of three witnesses, without contradiction, that it would be injurious to both parties to partition the property, together with proof of the situation of the land sought to be partitioned indicating the same thing.
THE COURT.
This action is for a partition of two lots in the city of Pasadena. The defendant appeals from an interlocutory judgment, in plaintiff’s favor and from an order denying a new trial.
The appeal from the judgment was taken more than sixty days after the same was entered, and must therefore be disregarded. (Code Civ. Proc., sec. 939, subd. 3.) The appeal from the order denying a new trial is left for consideration, and we will dispose of the questions properly arising thereon, omitting all those matters that can be determined only on appeal from the judgment.
(Thompson v. Los Angeles,
125 Cal. 270.)
[182]
Appellant objected to the testimony of each of three witnesses to the effect that it would be injurious to both parties to partition the property. The ground of his objection, as stated on this appeal (though it was not so stated at the trial), is “the absence of allegations in the complaint that said property could not be partitioned without great prejudice to the rights of the owners.” The complaint is devoid of the allegation as claimed, but the prayer of the complaint contains the following: ‘^Wherefore the said plaintiff prays judgment: ....
2.
That a partition of the said real property be made according to the rights of the respective parties, or, if a partition cannot be made without material injury and great prejudice to the owners of those rights, then that said premises be sold,” etc. Section 763 of the Code of Civil Procedure provides: “If it be alleged in the complaint and established by evidence, or if it appear by the evidence without such allegation in the complaint to the satisfaction of the court, that the property or any part of it is so situated that partition thereof cannot be made without great prejudice to the owners, the court may order a sale thereof.” This statute seems to contemplate that the court may investigate the question as to whether a sale is requisite to avoid great prejudice to the owners even in the absence of any allegation in the complaint to that effect.
In
De Uprey v. De Uprey,
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