McRoberts v. Lockwood ( 1892 )

By the CoüRT.

A proceeding to obtain the partition of real estate, instituted and conducted under Title 1, Division 7, Chapter 9, of the Code of Civil Procedure, is a civil action. Whether the petition states facts of a character to invoke the equitable jurisdiction of the court or not, the action is one in which the parties are not entitled to a jury trial, and of which the court of common pleas had original jurisdiction, and therefore-may'be appealed to the circuit court under the general right of appeal provided for by section 5226, of the Revised Statutes. The judgment, or decree, from which an appeal may be taken, is that which finally determines the rights of the parties. In an action to obtain the partition of real estate, the judgment that finds the parties to be tenants in common, ascertains and declares the share of each and orders the shares so found to be aparted to their several owners, is the one that determines the rights of the parties, and it is from this decree that an appeal in this class of actions may be taken. Whatever the law may be elsewhere, it has not been the policy of this state to allow appeals from orders of the court of common pleas in proceedings, after judgment, such as confirmations of, or setting aside sales of real estate and the like. The action of the court of common pleas in such cases, is reviewable only by proceedings in error. Reeves et al. v. Skenett, Jr. et al. 13 Ohio St. 574.

An order of partition partakes of the nature of an execution, or order of s^le. Proceedings under it may result in aparting the premises, or if they cannot be divided without injury, in their sale. Whether the commissioners apart the premises, or report tbat they are not susceptible to division without injury, and a sale of them is made by the sheriff, the orders of the court of common pleas in approving and confirming, or setting aside the proceedings at their several stages of progress, are not appealable.

Section 5227, Revised Statutes, provides that a party desiring to appeal his cause to the circuit court, shall, at the term the order or judgment is made, give notice of such intention, and, within thirty days after the rising of the court, give an undertaking as prescribed by that section. Notice of his intention to appeal the cause was not given by the plaintiff in error at the term of court at which the final judgment was rendered, nor was his undertaking filed within thirty days thereafter; for which reasons the appeal was properly dimissed.

Judgment affirmed.