Holt v. Holt — 131 Cal. 610

Majority

p. 610

[L. A. No. 943.

Department One.

February 19, 1901.]

WILLIAM W. HOLT, Respondent, v. FRANCES M. HOLT, Appellant. FRANCES BACON et al., Respondents.

Headnote

Partition—Appeal prom Order Confirming Sale—Error in Decree not Review able.—Upon appeal from an order confirming a sale in an action for partition, any error occurring in or prior to the decree of partition, which is appealable, cannot he reviewed; and the question whether the complaint does or does not state facts sufficient to support that decree, or whether the court failed to find upon a material issue tendered in an answer of the appellant, cannot be considered upon such appeal.

Id.—Order Fixing Attorneys’ Fees—Final Judgment.—Where the fixing of attorneys’ fees was reserved in the interlocutory de•cree for future consideration, and was passed upon at the time of confirming the sale, such order may he treated as a final judgment as to the attorneys’ fees.

APPEAL from an order of the Superior Court of Los Angeles County confirming a sale upon partition and fixing attorneys’ fees. Lucien Shaw, Judge.

The facts are stated in the opinion.

Hester & Ladd, for Appellant.

Charles L. Batcheller, and E. E. Bacon, for Respondents.

This is an action in partition in which the complaint alleges that the plaintiff Holt and the defendant Frances M. Holt are tenants in common, each having an estate of inheritance to the extent of one undivided half of the whole of the fee in a certain described lot in the city of Los Angeles; and that defendant Frances Bacon has a mortgage lien on the said interest of Frances M. Holt to the extent of five hundred dollars, besides interest.

The action was commenced January 6, 1899, a general demurrer to the complaint was overruled, an answer filed and a trial had, followed by an interlocutory decree of partition made on May 25, 1899, and filed on the 27th of the same month. This decree adjudicated and determined the rights and interests

p. 611

of the several parties to the suit in the lot in question, found that a partition could not be had without great prejudice to the owners, and ordered that a sale be made by the referees named in the decree and the proceeds thereof be applied by said referees: 1. To the payment of the general costs, including cost of ■abstract and attorneys’ fees; 2. To payment of costs of references and sale therein; 3. That the residue be paid to the several parties to the suit, the specific part that each should receive being fully stated in the decree. The court in this decree specially reserved its finding and order as to the amount of attorneys’ fees to be allowed until the making of its final decree. Subsequently, a sale was made under this decree to the respondent, Frank Jackson, and thereafter an order confirming said sale was duly made by the court and filed on the sixth day of January, 1900. In this order the attorneys’ fees were fixed at one hundred dollars and referee’s fees at thirty dollars. This appeal is from the last-mentioned order, which is referred to in the notice of appeal as “the final judgment and decree therein entered in the said superior court on the sixth day of January, 1900.” The notice of appeal was filed and the appeal taken on April 20, 1900, more than sixty days after the entry of the order appealed from, and more than six months after the entry •of the said interlocutory decree.

The only reasons urged for a reversal on this appeal are: 1. The complaint does not state sufficient facts, and the demurrer to it should have been sustained; 2. The court failed to find upon the issue tendered in appellant’s answer as to her right to a homestead upon the said property. These questions ■cannot be considered upon this appeal.

The objection urged against the complaint is that it fails to set forth specifically and particularly the origin, nature, and extent of the interests of the several parties in'the property described in the complaint. The nature and extent of the several interests were set forth in the complaint; and if the complaint was not sufficiently specific in the respects stated and the court had improperly overruled the demurrer, such action could be reviewed only on appeal from the interlocutory decree of partition; for that decree is a final judgment, certainly, as to all questions determined in it (Hammond v. Cailleaud, 111 Cal.

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206^[1] ), and whether the order here appealed from he treated as an order made after final judgment or as itself a final judgment, it is plain that the decree of partition cannot he reviewed; because an appeal might have been taken from such decree (Code Civ. Proc., sec. 963), and any intermediate decision that might have been appealed from cannot be reviewed on this appeal. (Code Civ. Proc., sec. 956.)

For reasons apparent from the foregoing argument we are also precluded from here reviewing or deciding anything as to the issue concerning the homestead.

This appeal cannot he treated as taken from the decree of partition, for the notice of appeal was filed after the time limited by statute for taking such an appeal.

In the interlocutory decree of partition the question of attorney’s fee was specially reserved for future consideration, and that matter was for the first time adjudicated in the order here appealed from. We may, therefore, treat such order as a final judgment as to the attorney’s fee at least, and in that view of the matter, as nothing is urged against said fee, we think the judgment appealed from should be affirmed, and so advise.

Cooper, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

Harrison, J., Tan Dyke, J., Garoutte, J.

1 52 Am. St. Rep. 165 .