213 P. 493 | Cal. | 1923
Defendant appeals from an interlocutory decree in partition, which adjudges that the plaintiff and defendant are tenants in common of the real property involved, and that the plaintiff is the owner of an undivided fifty-five one-hundredths thereof and the defendant the owner of an undivided forty-five one-hundredths thereof. The grounds alleged by defendant in support of his appeal have been variously stated, but, when analyzed, they all resolve themselves into the single contention that the evidence is insufficient to support the finding of the trial court to the effect that the plaintiff is the owner of an undivided fifty-five one-hundredths interest in the property. Respondent, in her answering brief discusses all of the contentions presented by appellant, and, in addition thereto, makes the *506
point that appellant is not entitled to the consideration by this court of any of his contentions, for the reason that he is not a party aggrieved by the judgment appealed from. [1] Section 758 of the Code of Civil Procedure provides, among other things, that a defendant in an action for partition of real property "must set forth his estate or interest in the property." A consideration of the legislative history of this section, from its enactment as section 270 of the Practice Act to and including the amendment of 1907, together with the code commissioner's note in connection therewith, leads to the conclusion that this code requirement was intended by the legislature to be mandatory. This conclusion is supported by the decision in Miller v. Sharp,
We find no authority in this state expressly in point upon this situation, but in Flannigan v. Towle,
Appellant has suggested no answer to the point thus raised by respondent, and, finding none ourselves, we are constrained to the conclusion that it is well taken.
The judgment is affirmed.
Lawlor, J., Lennon, J., Wilbur, C. J., Kerrigan, J., Seawell, J., and Waste, J., concurred.