Fallon v. Brittan

Fox, J. Action for the partition of five several parcels of land, held by the parties as tenants in common; two situate in the city and county of San Francisco, two situate in the city of San José, and one situate in the [512]county of Santa Cruz. Interlocutory decree entered, January 5, 1888, determining the interests of the respective parties, adjudging that as to two of said parcels, one situate in San Francisco and one in San José, partition could not be made without material injury to the interests of the parties, and directing that as to these two lots they be sold for purposes of partition; that as to the remaining lots, they be partitioned in due course; and appointing three referees to make sale of the two lots and the partition of the others.

From this decree appeal was taken January 6,1888, to this court. On the appeal this decree was affirmed and the appeal dismissed February 6,1890. Upon the going down of the remittitur, the referees originally appointed to make the partition and conduct the sale resigned, and the court by order appointed other referees in their stead. It was also then discovered that in describing one of the lots in the city of San José there was a clerical error in the complaint, which spelled the name of an abutting street on the west as “ Terrine,” when it should have been spelled “Terraine.” The court ordered the complaint amended so as to correct this clerical error, and properly spell the name of the street, “Terraine.” It was also discovered that as to the same lot and the same boundary, a clerical error had crept into both the findings and decree, and in each the street abutting on the west was described as “ Theresa Street.” The court ordered this mistake corrected by amending both the findings and decree by striking out the word " Theresa” wherever it occurred, and inserting in lieu thereof the word “Terraine.”

From these orders, and from this decree “as amended,” one of the defendants again appealed to this court, May 7, 1890. Subsequently, the appellant, finding that, notwithstanding the perfection of her appeal, the referees had advertised for sale the lots which by the decree were ordered to be sold for purposes of partition (of which, [513]however, the one affected by these so-called amendments is not one), she applied to this court for a supersedeas, or order staying all proceedings in said case pending the hearing of her appeal. An order to show cause was issued May 13, .1890, and meantime proceedings -were stayed.