Buller v. Linzee

• Decision Date: 10 March 1890
• Parties: BULLER v. LINZEE et al.
• Court: Missouri Supreme Court

13 S.W. 344

100 Mo. 95

BULLER v. LINZEE et al.

Supreme Court of Missouri.

March 10, 1890.

PARTITION — APPEAL — FINAL JUDGMENT.

In partition proceedings a judgment for partition and order of sale are interlocutory merely, and are not final judgments, within the meaning of Rev. St. Mo. 1889, § 7184, providing that appeals and writs of error will lie from a final judgment in partition proceedings.

Appeal from circuit court, Jasper county; J. D. PERKINS, Special Judge.

Jos. Cravens and H. W. Maxwell, for appellants. Harding & Buller, for respondent.

BARCLAY, J.

This is an action for the partition of certain lands in Jasper county. It was tried upon pleadings which show that the title to an undivided one-fifth of the property is disputed, the ownership of the residue being uncontested. Upon a hearing, the trial court found for plaintiff as to the one-fifth interest in controversy, and entered an interlocutory judgment in partition accordingly, with an order of sale. After unavailing motions for new trial and in arrest, the defendant, against whom that finding stood, appealed to this court. No sale, or report of sale, or order of distribution, or any further action by the trial court, was had. It has long been the law of this state that a judgment that partition be made, ascertaining the interests of the parties litigant, and ordering a division of the land in kind, is merely interlocutory, and not reviewable by appeal, until action had by the trial court on the report of the commissioners in partition. Gudgell v. Mead, (1843,) 8 Mo. 54; McMurtry v. Glascock, (1855,) 20 Mo. 432; Stephens v. Hume, (1857,) 25 Mo. 349; Ivory v. Delore, (1858,) 26 Mo. 505; Papin v. Blumenthal, (1867,) 41 Mo. 439; State v. Sutterfield, (1873,) 54 Mo. 394; Strickler v. Tracy, (1877,) 66 Mo. 466. But prior to the enactment of sections 7174 and 7184, Rev. St. 1889, (sections 39 and 58, c. 152, Gen. St. 1865,) as now worded, a judgment of that nature, which ordered a sale of the property, instead of a division in kind, was held by this court to be sufficiently final for the purposes of a review under the law then existing. Durham v. Darby, (1864,) 34 Mo. 447. Since the amendment of the statutes on the subject into their present form, it has been declared, with more or less positiveness, in a number of cases, that such a judgment, ordering a sale, is of no greater finality than one directing a partition in kind, and that neither will support an appeal. The partition must be perfected by the final report, required by law, and action thereon by the trial court, before the case can regularly be the subject of appellate review. This is the result of repeated decisions, which should be accepted as settling the rule. Parkinson v. Caplinger, (1877,) 65 Mo. 290; Murray v. Yates, (1880,) 73 Mo. 13; Turpin v. Turpin, (1885,) 88 Mo. 337; Harbison v. Sanford, (1886,) 90 Mo. 481, 3 S. W. Rep. 20; St. Joseph, etc., Ry. Co. v. Hannibal, etc., Ry. Co., (1887,) 94 Mo. 542, 6 S. W. Rep. 691; Holloway v. Holloway, (1888,) 97 Mo. 628, 11 S. W. Rep. 233. A remark was made in Holladay v....