Raisin Investment Co. v. Magginetti

HANSON, J. pro tem. The principal question presented for determination upon this appeal from a final judgment of partition, no appeal having been taken from the interlocutory judgment, is whether a trial court can amend its interlocutory judgment which ordered a partition in kind to one for a sale thereof if it appears from the facts recited in the referees’ report that a division in kind cannot be achieved without great prejudice to the owners.

Not only do the respondent owners contend that there is no such power vested in the court, but they also contend that if the court has such power no sufficient prejudice was shown to warrant any such action. We shall turn to consider this last point first, after stating the material facts.

The real property here involved consisted of three lots aggregating 83.93 feet in width (east to west) and 120 feet in depth (north and south) improved by an old one-story store building, covering the major portion of the three lots, [164]which had been nsed as a supermarket, but at the time of the trial was used only as a warehouse. A trussed roof resting on the two outer walls covered the forward part of the building and a flat roof the rear part. The building along with some smaller structures was valued by the referees at $5,000 and the three lots at $14,500 or a total of $19,500. At the trial there was evidence produced by appellant indicating that it would cost in excess of $3,000 to place a wall through the center of the building for its entire length which was the line later selected by the referees when they came to divide the property in kind. What evidence, if any, was introduced by respondents is not indicated by their brief. What it would cost either party to tear down the portion of the building allotted to him is not disclosed in the briefs. If in fact it would have cost the parties $3,000 or more to erect a partition wall to properly segregate the two halves of the building, it seems to us plain that the trial court in the first instance was not warranted in ordering a partition in kind, but should have ordered a sale. This for the reason that an expenditure of $3,000 was altogether too disproportionate to the value of $5,000 for the building as found by the referees. But appellant with full knowledge of the facts, nevertheless, did not appeal from the interlocutory judgment as it had a right to do (Code Civ. Proc., § 963 (2); Williams v. Wells Fargo Bank & U. Tr. Co., 17 Cal.2d 104 [109 P.2d 649] ; Pista v. Resetar, 205 Cal. 197 [270 P. 453]) but instead permitted it to become final long before the referees’ report was filed—a report which of necessity could not recommend a sale, but only a physical line for partition of the property. (Richardson v. Loupe, 80 Cal. 490 [22 P. 227].)