Noce v. Daveggio

McEEE, J. It is objected that the appeal in this ease was not taken in due time. The case was tried and judgment ordered for defendant on the 30th of September, 1881, but no judgment was entered until the 30th of July, 1883. Then, on motion of defendant’s attorney, the court caused judgment to be entered in favor of the defendant nunc pro tunc as of the 30th of September, 1881. The appeal was taken from this judgment on the 27th of November, 1883; it was therefore in time. A nunc pro tunc order does not deprive a party of his right to appeal. The time for appeal dates from the actual entry of the judgment: In re Fifteenth Avenue Extension, 54 Cal. 179.

The action was partition. The answer of the defendant contained a general denial and a plea of partnership existing between himself and the grantor of the plaintiff. On motion the plea of partnership was stricken out. But on the trial of the issue, raised by the general denial, evidence of a partnership was admitted, and the court found as facts that on the 15th of July, 1876, the grantor of the plaintiff and the defendant were co-owners of the land in controversy and co-[355]partners in cultivating the same, and that these relations existed between them until the 9th of August, 1880, when the cotenant of the defendant conveyed his undivided interest in the land to the plaintiff. And, as a conclusion of law, the court held that the plaintiff was not entitled to partition, and ordered that the action be dismissed and that judgment be entered against the plaintiff for costs.

The decision was against law. The conveyance to the plaintiff vested in him an undivided interest in the land, and made him a tenant in common therein with the defendant, and entitled him to partition. The fact that he had never been in occupancy of the land, and that his grantor and the defendant were copartners in the crops raised on the land did not affect his right to partition: Martin v. Walker, 58 Cal. 590.

Judgment reversed and cause remanded for further pro-

ceedings.

I concur: Ross, J.

I concur in the judgment: McKinstry, J.