36 Cal. 112 | Cal. | 1868
It is undoubtedly true that orders striking out immaterial portions of a pleading and orders sustaining demurrers are not appealable; and it is equally true that on„an appeal from a judgment,without a statement, no question can he determined that is not presented by the judgment roll; and since these propositions have been announced over and over again, times almost without number, we should suppose that by this time it would have been found out that an attempt to maintain the contrary in oral or printed arguments is a useless expenditure of labor and money.
It is, also, equally plain, and equally well settled, that the motion and order to strike out portions of the original complaint, are no part of the judgment roll. (Practice Act, Sec. 203; Harper v. Minor, 27 Cal. 109; Dimick v. Campbell, 31 Cal. 239; Sharp v. Daugney, 33 Cal. 513.)
As there is no statement, these matters have no place in the transcript, and constitute no part of the record on appeal. The only question presented by the record, therefore, is, whether the demurrer to the amended complaint was properly sustained. And looking to the amended complaint, the demurrer to which was sustained, we find nothing about a grant to General Sutter, which is made the basis of the whole argument in appellant’s briefs. It simply alleges that plaintiff is seized in fee, as tenant in common with said, defendant, and in possession of an undivided interest, equal to one hundred varas square, in the premises described as “all that portion of the City and County of San Francisco hounded on the north and west by Mission street, on the south by the Bay of San Francisco, Mission Bay and Mission Creek, con-
The whole argument of appellant is based upon the mistaken idea, that there is a case before the Court different from that presented in the amended complaint. He seems to feel, if not concede, that if mistaken in this, he must fail, unless he is aided by the amendment made to section two hundred seventy-two of the Practice Act in 1866. We do not see how this provision can aid him. It does not appear to us to have any bearing whatever upon the question. If it did, it would require the whole land, and not a portion, to be partitioned between plaintiff and defendant, and then the grantees of defendant would be necessary parties, because they would be directly interested in having the partition so made, if it could be done without injury to plaintiff, that the lands which should be set off to the defendant should embrace the lands held by them. They would be still deeply inter
Besides, the Court, upon a full showing, is to determine the question, whether it is “ impracticable and highly inconvenient to make a complete partition in the first instance among all the parties interested,” and no such question was presented for the opinion of the Court, or determined.
The complaint shows no right to have the particular piece partitioned. Plaintiff’s interest, as alleged, is in the entire tract, and not in that which remains unsold. The sale by defendant of portions of the tract could not pass his interest. He, as tenant in common, still has an undivided interest in the entire tract, and, if a partition is to be made, it must be made as to the whole. It would be necessary to consider the whole in making a partition, in order to determine the relative value of different parts. Different portions might be of greatly unequal value, and a tenant, who has an interest equal to the ratio of one hundred varas to the whole, would not be entitled to have the most valuable one hundred varas in the tract set off to him. The rights of the parties cannot be ultimately and finally determined without an examination and settlement of the rights of the parties as to the whole tract, and, to do this it would be necessary to make the grantees of the defendant parties, Gates v. Salmon, 35 Cal. 576; Wilson v. Lassen, 5 Cal. 116; Hathaway v. De Soto, 21 Cal. 192; De Uprey v. De Uprey, 27 Cal. 329, and Morenhout v. Higuera, 32 Cal. 289, are in accordance with this view.
We think the grantees of defendant, upon the facts stated in the amended complaint, necessary parties, and that the rights of the parties in the entire tract should be determined. The demurrer was properly sustained.
The appellant, however, asks that the case be sent back, with leave to amend. But this we cannot do. The Court granted leave to amend, so he had the opportunity, but
Let the judgment be affirmed and the remittitur issue forthwith.