Cunningham v. Frymire

VAN DYKE, P. J. This is an appeal from an order made after an interlocutory decree, entered in a partition action, had become final. By the original complaint it was alleged that the plaintiffs and the defendants were the owners of certain described property. The descriptions nsed were legal descriptions of four parcels of land. One, and the most valuable of all, was the NE]4 of Sec. 8 in Twp. 15 N., R. 9 W, M.D.M. The several parcels were familiarly referred to throughout the evidence as the MeClury land (a 10-acre plot, unimproved, valued at $7,500), the Mountain place (a parcel of 300 acres, unimproved, valued at $15,000), the Home place (160 acres, [892]improved with a house and barn, valued at $25,000, and being the NE14 of Sec. 8 in Twp. 15 N., R 9 W., M.D.M.), and the Orlena Jones place (a 10-acre plot, unimproved, valued at $7,500). For reasons unimportant here, an amended complaint was filed, but, through error in drafting the document, the description of the home place was omitted. This omission persisted throughout the proceedings leading up to the interlocutory decree of partition, and affected- the findings, conclusions and interlocutory decree signed by the judge who tried the cause. An appeal was taken from the interlocutory decree to this court and this court’s decision affirming the interlocutory decree appears in Cunningham v. Frymire, 160 Cal.App.2d 726 [325 P.2d 555], During the appellate proceedings the descriptive error persisted, but this court’s discussion of the issues on appeal make it appear that this court and the parties to the appeal alike considered that the land being partitioned consisted of the four parcels, including the home place. For instance, we said at page 728: “. . . The evidence produced disclosed that the property in question consisted of four parcels of land:

1. McClury land, 10 acres—unimproved.....$ 7,500.00

2. Mountain place, 300 acres—unimproved... 15,000.00

3. Home place, 160 acres—improved with a house and barn.................... 25,000.00

4. Orlena Jones place, 10 acres—unimproved.. 7,500.00”

One of the issues on appeal was whether or not the property should be partitioned in kind or should be sold. In ruling against the contention that partition in kind was called for, we said on page 729:

11. . . In the instant ease two of the plots of land were less than 10 acres and each was unimproved. One plot of 300 acres was mountain land which had a fine spring. The fourth plot was 160 acres and contains a house and a barn. Whoever got the property with the spring would get the best portion of the mountain land and whoever got the portion of the land containing the house and barn would get the best portion of that plot. These facts would support partition by sale rather than in kind.”