Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] 27 Cal. 93 at 98.
Original Opinion of October 1864, Reported at: 27 Cal. 93.
JUDGES: Sawyer, J., on petition for rehearing.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
The correctness of our decision is not questioned in the petition for rehearing. A rehearing seems to have been asked on the supposition that the District Court was directed to enter a judgment ordering a sale of the property and division of the proceeds. But such is not the order. The order is: " Judgment reversed, and a new trial ordered in pursuance of the principles indicated in this opinion." When the case goes back a new trial will be had. The plaintiff prays for a partition. If a partition is to be had, it can only be made by a sale and a division of the proceeds. Plaintiff now urges that upon the pleadings a partition would not necessarily follow; that other relief may be had which will accomplish the object of the parties. These questions do not arise upon this appeal. Upon a new trial the court will doubtless afford such relief as it judges the parties may be entitled to upon the pleadings and facts established on the trial. The defendants do not appear to demand affirmative relief; they simply submit to a partition, but insist that they are entitled to a larger share than is accorded to them in the complaint, and that, if a partition is decreed, it should be made according to the interests as claimed in the answer. If the pleadings do not present the questions which the parties desire to litigate and have determined, in view of the fact that a mechanical division of the water cannot be had, perhaps the suit might be dismissed, and another commenced upon another theory, or parties might arrange to amend. At all events, when the cause goes back for a new trial, the parties can pursue such course as they may deem their interests to require. We do not see that a different judgment could be entered upon this record.
A rehearing is denied; but, to guard against misapprehension, the order for judgment is modified so as to read: Judgment reversed and new trial ordered.