95 Neb. 469 | Neb. | 1914
The defendants have appealed from an order of the district court for Hamilton county.
The plaintiffs filed a motion to dismiss the appeal,' alleging that the action was in partition, and that there was an order directing the sale of the real estate in partition, and that no. sale has been had, and therefore no final order which is appealable. Section 8185, Rev. St. 1913, provides: “A judgment rendered or final order made bv the district court may be reversed, vacated or modified by the supreme court, for errors appearing on the record.” Section 817'6 provides: “An order affecting a substantial right made in a special proceeding
(1) Where there is no controversy as to the ownership of the property in common and the right of partition, but the controversy is as to something relating to the partition, as whether the property can be equitably divided or must be sold, one party contending that it can be equitably divided and asking for a distinct portion of the property, and the other party contending that it cannot be equitably divided and asking that the whole property be sold, or some similar controversy in regard to the partition itself. When that is the case, the partition alone is the subject of litigation, and of course is not final until the partition is made.
(2) The second class is where there is the same issue as above indicated as to the method of partition, and at the same time a distinct issue as to the title and ownership of the property. In such cases the parties would have a right to have their title first tried and determined, and, if that was done, the order thereon would be a final order, within the per curiam in the Bewail case, .but if the matter is tried to the court, and the parties do not ask that their title be first determined, and there is no indication that the court proceeded first to determine the title, the parties should be held to have waived their right to appeal before the partition is completed.
(3) The third class is where everything depends upon the title and the nature of the title, and where, when that question is determined, the whole thing is determined. In such case there can be no doubt under the per curiam in the Bewail case that, when that question is determined, such determination is a final order, within the meaning of the statute, and is appealable.
It follows that the order complained of is final, within ■ the meaning of the statute, and the motion to dismiss the appeal is
Overruled.