28 Cal. 320 | Cal. | 1865
By the Court,
This is an appeal from an interlocutory judgment, entered February 26th, 1864, determining the interest of the several parties, settling the principle upon which a partition is to be made, and appointing'referees to make a partition, and report the same to the Court. There are two appeals. The first was taken March 30th, and the second May 27th, 1864. The respondents move to dismiss the several appeals, on the ground that no appeal lies from the judgment. The question must be determined upon the provisions of the Practice Act. We have carefully examined the points made by the light of the arguments of counsel, and without discussing the questions here, we are Satisfied that, under the provisions of the Practice Act relating to partitions, the judgment appealed from is not a “ final judgment in an action or special proceeding,” within the meaning of the provisions of section three hundred and forty-seven, prescribing the cases in which appeals to this Court may be taken. The judgment is merely interlocutory, and not final. After the report of the referees is made and confirmed, the Court renders its judgment thereon, and this becomes the final judgment from which an appeal can be taken by any party to the suit who is aggrieved; and on such appeal “any intermediate order involving the merits and necessarily affecting the judgment may be reviewed.”
On the 23d of March, 1864—about a month after the entry of the interlocutory judgment appealed from—the Legislature passed an Act authorizing an appeal to “ be taken from a judgment or decree of the Court in cases of, partition, which determines the right of the several parties and directs a partition to be made ”—which Act took effect sixty days after its passage. Soon after this Act took effect, the appellants took the second appeal, for the purpose of availing themselves of its provisions in case it should be held that the first appeal would not lie. This Act contains no provision making it retroactive,
We have come to this conclusion with great reluctance; for it is quite obvious, that the ends of justice would be greatly promoted by allowing appeals from these interlocutory orders, before great expense lias been incurred in making partitions of large ranchos—like the one now in question—held by a great number of teñants in common. But we must administer the law as we find it, notwithstanding the fact, that this course, may, in some instances, result in great inconvenience. If, however, the partition is finally made in pursuance of the directions of the order appealed from, the appellants may, after all, obtain the lands they seek to have set off to them.
Appeal dismissed.
Mr. Justice Bhafter, having been of counsel, did not,sit on the hearing of this cause.
Mr. Justice Cürrey expressed no opinion.