Hastings v. Cunningham , 1868 Cal. LEXIS 124 ( 1868 )

By the Court, Rhodes, J.:

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 for partition is therefore regulated by the general provisions of the Practice Act. According to section one hundred and eighty-two, a reference to try all the issues in an action can be ordered only upon the agreement of the parties. The following section provides for a reference without the consent of the parties in certain cases therein mentioned, but a reference of an issue arising upon the pleadings is not one of those cases' except when, the trial of the issue requires the examination of a long account on either side. (Williams v. Benton, 24 Cal. 424.) It follows, therefore, that it is erroneous for the Court to order a reference for the purpose of trying all the issues in an action for partition in which there is a party whose name is unknown; for his name being unknown, his consent to the reference cannot be procured. The reference in this case being erroneous, for the reason just mentioned, all the proceedings founded thereon must fall.

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.

It ought to be added, though the point is not made by counsel, that the order vacating the order of reference, and the proceedings subsequent thereto, is not an appealable order; for it is neither a final judgment, nor one of the orders mentioned in sections three hundred and thirty-six and eight hundred and forty-seven of the Practice Act, from which an appeal may he taken. As the order, if it were appealable, would be affirmed on its merits; as the ultimate effect of an affirmance would not materially differ from that of a dismisal of the appeal; and as an affirmance would indirectly sanction the appeal from a non-appealable order; it is ordered that the appeal be dismissed.