Richardson v. Ruddy
| Decision Date | 19 December 1905 |
| Parties | RICHARDSON v. RUDDY |
| Court | Idaho Supreme Court |
PARTITION-REFEREE'S REPORT-CONFIRMATION.
1. Where it is shown that the report of the referees appointed to partition real estate is unjust and inequitable, it should be set aside.
2. Where it is shown that the referees have not complied with the order of the court in making such partition, their report should be set aside.
(Syllabus by the court.)
APPEAL from the District Court of Idaho County. Honorable Edgar C Steele, Judge.
Judgment confirming report of referees reversed.
Judgement confirming the report of the referees set aside with directions. Cause remanded. Costs of this appeal awarded to the appellants.
George W. Tannahill and James De Haven, for Appellant, cite no authorities on the points decided.
Clay McNamee, George W. Good and J. E. Jaques, for Respondent cite no authorities on the points decided.
SULLIVAN, J. Stockslager, C. J., concurs. Ailshie, J., sat at the hearing, but took no part in the decision.
The facts are stated in the opinion.
This is an action brought under the provisions of title 10, chapter 5, of the Revised Statutes of Idaho for the partition of certain real estate lying in Idaho county, and to have the defendant, Richard Ruddy, declared a trustee for the benefit of the plaintiffs and defendants named in the complaint, and was before this court on appeal at the March, 1904, term. (See Richardson v. Ruddy, 10 Idaho 151, 77 P. 972.) Three points were decided on that appeal, and the judgment of the lower court was affirmed. We held on that appeal in a suit for partition of real estate if it appeared to the court that it was impracticable or inconvenient to make a complete partition in the first instance, the court might direct a partition between two or more of the parties, and from time to time thereafter might determine as to the other parties' shares and interest, and render a further judgment directing a partition in like manner of all the undetermined parts or portions of the property. After the case was remanded, the trial court proceeded to make partition between some of the other parties to the suit. It appears from the record that the trial court appointed W. C. McNutt, O. A. Fox and W. C. Short referees, to make a partition of the premises described in the complaint, in so far as plaintiff, Walker Richardson, and defendant, A. A. Kincaid, were concerned. The report of said referees was filed September 15. 1904, and thereupon, four of the defendants filed objections to the report objecting to its confirmation on a number of grounds. Said matter was heard before the court and a number of witnesses testified, and some documentary evidence was introduced on the hearing, and the court thereafter entered judgment on the report of the referees. A motion for a new trial was denied. The appeal is from a judgment and order denying a new trial.
Counsel for appellants contend that the court erred in refusing to grant them a continuance in the original trial of this case. That matter was disposed of on the former appeal, and is res adjudicata. The matters that are before us for decision on this appeal are those arising out of the report of the referees and the judgment of the court thereon.
That judgment is attacked on the ground that it is inequitable and unjust, and that the evidence shows the conduct of the referees was improper and reprehensible. The evidence shows that the most valuable parts of the tract of land partitioned were set off to the respondents. Richardson and Kincaid. It is shown that the land set off to them was relatively worth from twenty-five to fifty per cent in excess of the value of the remaining tracts. The court erred in rejecting all evidence offered tending to show that the partition...
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