Otherwise, the trial court shall enter a second judgment confirming the partition made by the commissioners. Accordingly, unlike other proceedings, a partition case has two final judgments, both of which are appealable. Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980); Thomas v. McNair, 882 S.W.2d 870, 876 (Tex.App. — Corpus Christi 1994, no writ). The trial court's initial decree determining partitionability and appointing commissioners, although often referred to as an interlocutory decree, is a final and appealable order which is conclusive of all matters decreed within it. Azios v. Slot, 653 S.W.2d 111, 114 (Tex.App. — Austin 1983, no writ); Rayson v. Johns, 524 S.W.2d 380, 382 (Tex.Civ.App. — Texarkana 1975, writ ref'd n.r.e.) In addition to determining the basic issues of partitionability in kind and the fractional interests of the parties, the trial court also has the power during the initial stage of the partition proceeding to adjust all equities between the parties.
Partition actions, moreover, are subject to the parties’ jury-trial right. See, e.g.,Payne v. Benham , 16 Tex. 364, 369–70 (1856) ; Azios v. Slot , 653 S.W.2d 111, 112–14 (Tex. App.—Austin 1983, no writ). The jury may resolve factual questions about whether someone was a tenant in common; the legitimate amount of accounting associated with dividing the property; and other factual disputes.
Partition actions, moreover, are subject to the parties' jury-trial right. See, e.g., Payne v. Benham, 16 Tex. 364, 369-70 (1856); Azios v. Slot, 653 S.W.2d 111, 112-14 (Tex. App.-Austin 1983, no writ). The jury may resolve factual questions about whether someone was a tenant in common; the legitimate amount of accounting associated with dividing the property; and other factual disputes. Payne, 16 Tex. at 369-70; Burton v. Williams, 195 S.W.2d 245, 247-48 (Tex. Civ. App.-Waco 1946, writ ref'd n.r.e.); Bouquet v. Belk, 376 S.W.2d 361, 362-63 (Tex. Civ. App.-San Antonio 1964, no writ).
770. If evidence "is conflicting or admits of more than one inference," the issue of whether land can be fairly partitioned is a question to be determined by a finder of fact after a full evidentiary hearing. Rayson v. Johns, 524 S.W.2d 380, 382 (Tex.Civ.App.-Texarkana 1975, writ ref'd n.r.e.); Kuehn v. Wishard, 452 S.W.2d 5, 9-10 (Tex.Civ.App.-Houston [14th] 1970, writ ref'd n.r.e.); see Azios v. Slot, 653 S.W.2d 111, 114 (Tex.App.-Austin 1983, no writ). John Scott McNabb, a certified general real estate appraiser, consultant and broker, testified at the hearing.
P. 760.See Yturria v. Kimbro, 921 S.W.2d 338, 342 (Tex.App.-Corpus Christi 1996, no writ); Azios v. Slot, 653 S.W.2d 111, 113 (Tex.App.-Austin 1983, no writ); Rayson v. Johns, 524 S.W.2d 380, 382 (Tex.Civ.App.-Texarkana 1975, writ ref'd n.r.e.).Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
See also 3 R. McDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 11.02 (rev. 1983). See Azios v. Slot, 653 S.W.2d 111 (Tex.App. — Austin 1983, no writ) for an excellent historical review of the right to a jury trial in this state. We construe the right to a jury trial to include a situation such as in the instant case to determine the necessity and reasonableness of costs and expenses, including attorney's fees, incurred subsequent to a mandamus action ordering the inspection of corporate books and records.