| Mo. | Oct 15, 1889
This is an action for the partition of certain lands in Jasper county. It was tried upon pleadings which show that the title to an undivided one-fifth of the property is disputed, the ownership of the residue being uncontested.
Upon a hearing the trial court found for the plaintiff as to the one-fifth interest in controversy and entered an interlocutory judgment in partition accordingly, with an order of sale. After unavailing motions for new trial and in arrest the defendant, against whom that finding stood, appealed to this court. No sale or report of sale or order of distribution or any further action by the trial court was had.
It has long been the law of this state that a judgment that partition be made, ascertaining the interests of the parties litigant and ordering a division of the land in kind, is merely interlocutory and not reviewable by appeal until action had by the trial court on the report of the commissioners in partition. Gudgell v. Mead (1843), 8 Mo. 54; McMurtry v. Glascock (1855), 20 Mo. 432" court="Mo." date_filed="1855-03-15" href="https://app.midpage.ai/document/louisiana--middletown-plank-road-co-v-mitchell-7999482?utm_source=webapp" opinion_id="7999482">20 Mo. 432; Stephens v. Hume (1857), 25 Mo. 349" court="Mo." date_filed="1857-07-15" href="https://app.midpage.ai/document/stephens-v-hume-8000118?utm_source=webapp" opinion_id="8000118">25 Mo. 349; Ivory v. Delore (1858), 26 Mo. 505" court="Mo." date_filed="1858-03-15" href="https://app.midpage.ai/document/ivory-v-delore-8000287?utm_source=webapp" opinion_id="8000287">26 Mo. 505; Papin v. Blumenthal (1867), 41 Mo. 440; State ex rel. v. Sutterfield (1873), 54 Mo. 394; Strickler v. Pracy (1877), 66 Mo. 466.
But prior to the enactment of sections 7174 and 7184 (R. S. 1889, secs. 39 and 58, chap. 152, Gen. Stat. 1865), as now worded, a judgment of that nature, which ordered a sale of the property, instead of a division in kind, was held by this court to be sufficiently final for the purposes of a review under the law then existing, Durham v. Darby (1864), 34 Mo. 447" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/durham-v-darby-8001488?utm_source=webapp" opinion_id="8001488">34 Mo. 447.
Since the amendment of the statutes on the subject into their present form, it has been declared, with more or less positiveness, in a number of cases, that such a judgment ordering a sale is of no greater finality than one directing a partition in kind, and that neither will
A remark was made in Holladay v. Langford (1885), 87 Mo. 582, and repeated in Bobb v. Graham (1886), 89 Mo. 207, which seems to give some effect to the ruling in Durham v. Darby (1864), 34 Mo. 447" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/durham-v-darby-8001488?utm_source=webapp" opinion_id="8001488">34 Mo. 447 (concerning the finality of an order of sale), as a correct interpretation of the law. now in force. The change in the statutes, noted in Hinds v. Stevens (1870), 45 Mo. 211, and in Murray v. Yates (1880), 73 Mo. 13, was overlooked. The remark is out of line with many decisions, above mentioned, in which the learned judge, who made it, concurred. It is evidently an inadvertence and should not be considered as authority. The appeal in the case at bar is premature.
As the merits of the cause are not now properly before us for review, we refrain from any expression of opinion regarding them.
We all agree that the appeal should be dismissed, and it is so ordered.