Felder v. Felder

SALSMAN, J. This is an appeal by plaintiffs-appellants Joseph T. and Louis J. Felder from the final judgment entered in their partition action brought against defendant-respondent Leo C. Felder. Appellants raise many issues in their brief, but none has sufficient merit to require reversal of the judgment. We therefore affirm the final judgment from which this appeal is taken.

Appellants and respondent own the real property that is the subject of the action. It consists of approximately 1,300 acres of land located in Sonoma County and is used principally as a dairy ranch. Appellant Joseph and respondent Leo each owns an undivided 15/32d interest in the ranch, and appellant Louis owns an undivided l/16th interest. Louis occupies a cottage on the ranch, rent free, but the remainder [720]of the property is occupied by Leo under a lease arrangement providing for an annual rent of $3,500. Upon termination of the lease the parties were unable to agree upon a renewal. Joseph and Louis then commenced this action to partition the property. Leo answered and also sought partition.

In the afternoon of the second day of trial, counsel for the parties announced to the court that an agreement had been reached for a physical partition of the property and that a stipulation to that effect could then be made in open court. Counsel for respondent Leo then recited the stipulation for the record. Appellants’ counsel helped him.

The stipulation was a long one, which we need not repeat in detail here. Maps in evidence were used to illustrate and clarify the stipulation during the recitation. The essence of the stipulation was that the property could be partitioned; Leo was to receive the 400 most easterly acres of the ranch, and appellants were to receive the remainder. The westerly boundary of Leo’s 400 acres was to be fixed by a line drawn from a focal point on Felder Creek, the line to run in a generally northwesterly direction to the northern boundary of the ranch, and to be variable so as to enclose 400 acres. The parties agreed to employ a surveyor to fix the line between the two points and to provide descriptions. The court approved the stipulation, and the proceedings were then recessed. Pursuant to the stipulation the parties employed a surveyor who found that the actual acreage of the ranch was 1,252.25.

In March 1963 the court signed findings of fact, conclusions of law and an interlocutory judgment. In its judgment the. court affirmed the stipulation of the parties agreeing to partition and reserved jurisdiction for the purpose of amending the judgment and to make effective the terms of the stipulation. On March 27, 1963, Joseph and Louis moved to set aside the judgment on the ground that it had been entered through mistake, inadvertence, surprise and excusable neglect. They also moved to set aside the stipulation upon which the judgment was based, on the grounds that the stipulation was unauthorized, in error, uncertain and ambiguous. Louis and Joseph, filed affidavits in support of their motion to vacate the judgment. The motion was denied. They appealed from the judgment, but not from the order refusing to vacate the judgment. In an unpublished opinion affirming the judgment, this court (division 2) pointed out that consideration could not be given to the factual matters asserted by Louis and Joseph in