35 Cal. 549 | Cal. | 1868
The Chapter of the Practice Act relating to the partition of real property contains no special provision for the appointment of a referee to try the issues and find the title of the respective parties. The appointment of a referee in an action
It is objected that the Court below had no authority to set aside the order of reference and the subsequent proceedings, because the power of the Court over its judgments ceased upon the expiration of the term. The rule invoked has no application except to final judgments, and not while the proceedings are in fieri. The order for a partition, or for a sale, in case a partition cannot be made without great prejudice to the owners, is not the final judgment in the action. They are to be succeeded by a judgment confirming the partition or sale.
No question can. be raised as to whether Richardson did or did not answer; nor as to the effect of a lis pendens-; nor as to the evidence of title adduced by Richardson; nor as to his proceedings upon the motion, because the record before us contains only a part of the judgment roll, without the answers or the notice of lis pendens; and there is neither a statement nor a bill of exceptions in the record. In the absence of anything to the contrary, it must be presumed that Richardson made the necessary showing, and that the Court decided correctly.