Tormey v. Allen
Synopsis
Partition—Practice as to Hew Trials.-—An action for a partition of real estate is as completely within the operation of the Practice Act as any other civil action for the conduct of which rules of procedure are therein prescribed. Sections one hundred and ninety-three and one hundred and ninety-five of that Act apply to a motion for a new trial in proceedings on partition.
Idem.—If there is error in an interlocutory decree in partition, it must be corrected by motion for a new trial or by an appeal.
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.
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