Kesler v. Nice

• Decision Date: 05 October 1909
• Citation: 54 Or. 585,104 P. 2
• Parties: KESLER et al. v. NICE et al. [d]
• Court: Oregon Supreme Court

104 P. 2

54 Or. 585

KESLER et al. v. NICE et al. ^[d]

Supreme Court of Oregon

October 5, 1909

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Suit by Abraham L. Kesler and others against Charles W. Nice and others. Decree for plaintiffs. Defendants appeal. Dismissed.

The plaintiffs brought this suit for partition of a lot in the city of Forest Grove, and allege that four of them and two of the defendants are the owners in fee simple and tenants in common thereof; that on the lot there is a small house, so situated that the premises cannot be divided and the several shares allotted to the persons entitled thereto. The answer denies that the plaintiffs have any interest in the lot, and affirmatively avers that the defendants are the sole owners thereof, and prays for a dismissal of the suit. The cause was submitted to the trial court upon a stipulation of the parties as to the facts, and on July 27, 1909, an interlocutory decree was rendered by the court establishing the rights of the parties in conformity with the averments of the complaint, and directing a sale of the property by a referee named therein. The defendants have attempted to appeal from this decree.

W.M Langley & Son, for appellants.

H.T Bagley, for respondents.

SLATER J. (after stating the facts as above).

The jurisdiction of this court to review the decisions of the circuit court is expressly limited to such as are final decisions. Section 6, art. 7, Const. Finality, therefore must be put to the suit by the circuit court before an attempt can properly be made to have the decision therein revised in this court. Shirley v. Birch, 16 Or. 1 4, 18 P. 344; Conrad v. Packing Co., 34 Or. 337, 49 P. 659, 52 P. 1134, 57 P. 1021. And it has been settled in this court that in suits for partition the only decree that is by the statute declared to be "effectual forever," and "binding and conclusive," and therefore final, is that entered upon confirmation of the report of referees. All orders or decrees in the regular course of proceedings prior to that time are merely interlocutory. Sterling v. Sterling, 43 Or. 201, 72 P. 741. This is the only final decree contemplated by the statute, and the only one from which an appeal will lie. Bybee v. Summers, 4 Or. 354. No objection to the jurisdiction of the court has been suggested by any of the parties, but the want of jurisdiction is patent upon the face of the record; and,...