Richardson v. Ruddy

• Citation: 98 P. 842,15 Idaho 488
• Parties: A. C. RICHARDSON and WALKER RICHARDSON, Appellants, v. RICHARD RUDDY, E. CONRAD, MRS.E. CONRAD, C. E. NEWTON, J. J. MARASECK, MATH JACOBS and A. A. KINCAID, Respondents
• Decision Date: 03 December 1908
• Court: Idaho Supreme Court

98 P. 842

15 Idaho 488

A. C. RICHARDSON and WALKER RICHARDSON, Appellants, v. RICHARD RUDDY, E. CONRAD, MRS.E. CONRAD, C. E. NEWTON, J. J. MARASECK, MATH JACOBS and A. A. KINCAID, Respondents

Supreme Court of Idaho

December 3, 1908

PARTITION OF REAL PROPERTY-JURISDICTION OF COURT-REPORT OF REFEREES-HEARING.

1. The interlocutory decree, entered in an action for the partition of real property, determines the right to partition and fixes the respective rights of the parties, as ascertained by the court.

2. The report of the referees appointed to partition real property presents merely the question whether said referees made the partition in accordance with the decree of the court.

3. The hearing of the report of referees appointed to partition real property should be merely for the purpose of ascertaining whether such referees carried out the directions of the court, and evidence should be received at such hearing directed to this question only, except when such report involves the question whether the referees acted fairly and equitably.

4. Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending, and not whether the particular case is one that presents the cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.

5. Whether the particular facts of the case authorize the trial court to enter a decree for the partition of real property does not involve the jurisdiction of the court to act in such matter, but relates solely to the inquiry: Did the court act erroneously upon the facts presented?

6. There is a clear distinction between jurisdiction to act and action which is merely erroneous. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the court did act.

7. An interlocutory decree entered in a partition suit, and the report of the referees thereunder, will not be set aside upon the ground that the particular facts upon which the court based such interlocutory decree did not authorize or justify the entry of such decree. Such question can only be reviewed upon an appeal, in which the facts presented to the trial court are also presented to the appellate court. This, however, does not involve the jurisdiction of the trial court to act.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

An action for the partition of real property. Motion to set aside an interlocutory decree and the order confirming the report of the referees. Motion denied. Appeal from such order. Affirmed.

Judgment of the trial court affirmed. Costs awarded to the respondents.

George W. Tannahill, and James De Haven, for Appellants.

Clay McNamee, and J. E. Jacques, for Respondents.

Counsel cite no authorities on points decided.

STEWART J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This case has been before this court upon two former appeals (10 Idaho 151, 77 P. 972, 11 Idaho 561, 83 P. 606). The action is for partition of real property. The first appeal presented to this court for review an interlocutory order or decree rendered by the trial court on March 16, 1903, in which the court determined the interests of Walker Richardson and A. A. Kincaid, and made findings and ordered a partition of said premises as to them, and appointed three referees to make said partition and report their action. The case was continued as to the interests of the other parties to said suit. A motion for a new trial was made, denied, and the appeal was from the judgment and from the order overruling a motion for new trial. Upon appeal this court passed upon the sufficiency of the complaint and the motion for a continuance, and held the court had power and jurisdiction to enter an interlocutory decree directing a partition of the real property as between those whose share had been determined, and leaving intact the share, interest or estate of those that were undetermined. The court also held that the trial court committed no error in admitting in evidence certain letters. The judgment was affirmed. The referees appointed by the interlocutory decree made their report and the same was confirmed by the trial court. A motion for new trial was denied and the second appeal was from the judgment and the order denying a new trial.

Upon the second appeal the question of continuance was again presented. This court held that the matter was disposed of on the former appeal, and was res adjudicata, and that the matter before the court upon that appeal arose out of the report of the referees and the judgment of the court thereon. The judgment of the trial court, confirming the report of the referees, was set aside and direction given to appoint other referees who would equitably and justly apportion said lands between the respective parties, and the cause was remanded for further proceeding. After the reversal Richard Ruddy, E. Conrad, Mrs. E. Conrad, J. J Maraseck and Math Jacobs, appellants herein, moved the court to set aside the interlocutory order made on March 16, 1903, and prior to both the former appeals. The principal ground of this motion was, that the court had no jurisdiction of the subject matter of the suit, at the time of the filing of said suit, or at the time of the rendition of said interlocutory decree, or at all, and that all the proceedings relative thereto are and were void and of no effect whatever, for the reason that said interlocutory decree as rendered was in violation of secs. 2288 and 2290 of the Rev. Stat. of the United States, providing the mode of procedure under which title may be acquired to public land of the United States by homestead entry. This motion was denied and the appellants herein excepted. Afterward, by agreement of the parties, E. C. Spedden was appointed as sole referee to make the partition under said interlocutory order. This referee proceeded in accordance with the directions of said order to make said partition, and made his report to the court in writing. Upon the coming in of said report the defendants, appellants here, Richard Ruddy, E. Conrad, Mrs. E. Conrad, C. E. Newton, J. J. Maraseck and Math Jacobs, each and all, objected to the report of the referee, upon the same grounds as alleged in the motion to set aside the interlocutory order, that is, that the court had no jurisdiction of the subject matter of the action, and had no jurisdiction to make an order appointing a referee or confirm or approve the report of the referee or make or enter a decree of partition of said premises. This objection was overruled and final judgment was entered confirming the report of the referee. A motion for a new trial was made and overruled. This appeal is from the judgment and from the order denying a new trial. It appears from the record that a trial was had upon the objections to the report of the referee and certain evidence was introduced. The evidence introduced upon this hearing is found in the record in a proper bill of exceptions. The evidence, however, taken upon the original trial, upon which findings were made and the interlocutory decree entered, is not in the record. This court therefore is not advised as to what the proof showed upon which the interlocutory decree was based, and for that reason cannot review the same. The sufficiency of the complaint and the nature and character of the action have been determined, and these questions are res adjudicata. The sole question argued by appellant upon this appeal was, that the trial court did not have jurisdiction of the subject matter or jurisdiction to enter the judgment appealed from. The question of jurisdiction may be raised at any time under the provisions of Rev. Stat., sec. 4178, and if the judgment in this case is void for want of jurisdiction, it would seem that the question can be raised at any stage of the proceeding, and that a motion to set aside the judgment upon that ground is proper and recognized practice. (15 Ency. Pl. & Pr. 237.)

In this case there is nothing upon the face of the judgment of confirmation of the report of the referee or the interlocutory decree which in any way indicates want of jurisdiction in the trial court to make the same. The appellant, however, argues that because it appeared at the hearing of the objections to the confirmation of the report of the referee that an agreement had been entered into between appellants and respondents which provided that an entry should be made under the homestead laws of the United States, by which title should be acquired in the...