Barry v. Barry

McKinstry, J.: The appeal is from the final judgment in an action for a partition of real property, and from an order denying a motion for a new trial made after that judgment was entered. The final judgment was entered May 31st, 1878, and, after confirming the report of the referee or commissioners appointed by the interlocutory decree hereinafter mentioned, adjudged the partition accomplished in accordance with such report.

[11]The interlocutory decree—determining the rights and interests of. the several parties as tenants in common, adjudging that a partition should be had, and appointing commissioners or referees to make partition—was filed and entered November 7th, 1877. From that decree no appeal has been taken, nor Avas any motion made for a new trial of the issues upon the determination of Avhich that decree Avas entered. The interlocutory decree Avas appealable. (Code Civ. Proc. § 963.) The interlocutory decree became finally determinative of the rights and interests of the several parties, as tenants in common, in sixty days after it Avas entered. No error is alleged to have been committed intermediate the interlocutory and final decree, nor is it claimed the final decree is erroneous, if the interlocutory decree he assumed to be correct. The interlocutory cannot he reviewed on appeal from the final decree. (Code Civ. Proc. § 956.)

Judgment and order affirmed.

McKee, J., and Eoss, J., concurred.