Home Etc. Assn. v. Western Etc. Co.

Defendants filed a demurrer to the complaint, which was for partition, upon the ground, among others, that it "is uncertain in this, that it cannot be determined from the complaint where the property sought to be described in the complaint is situate."

The demurrer was overruled and an interlocutory judgment entered. Defendant Kelsey prosecutes this appeal from the judgment and claims that the court erred in overruling the demurrer, his sole point being that the complaint does not contain a sufficient description of the property sought to be partitioned.

The description is as follows: "Situate in Oakland Township, county of Alameda, state of California, and described as follows, to wit: The westerly one-half of lot nine (9) in block D as the same is delineated and so designated on a certain plat entitled `Map of Klinknerville Tract,' filed March 21, 1899, in the office of the county recorder of Alameda County, California."

The description is sufficient under the rule in all jurisdictions and long settled in this state. The judgment should be affirmed, with one hundred dollars damages against appellant for a frivolous appeal.

Gray, C., and Harrison, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is affirmed, with one hundred dollars damages against appellant for a frivolous appeal.

McFarland, J., Lorigan, J., Henshaw, J. *Page 219