Opinion
June Term, 1824.
In a petition for partition the first judgment to be rendered is for the appointment of commissioners, and final judgment is to be rendered on their return. An appeal taken from any interlocutory judgment will be dismissed.
THIS was a petition for partition of land. At the return of the process the defendants appeared and pleaded "Sole tenure." At the succeeding term the petitioners, by their counsel, moved the court for a decree of partition on the ground that defendants' plea was nullity, they having no right to make defense, because, by the act of the Legislature giving jurisdiction in cases of petition, it was intended that the proceedings should be ex parte. The defendants then moved that as neither replication nor demurrer was filed to their plea, that the petition should be dismissed. The court held that the proceedings were ex parte, and decreed partition, and at the same time adjudged that defendants should take nothing by their motion. Whereupon defendants appealed to this Court.
This appeal is taken from an interlocutory judgment, and is not (42) sustainable under the act organizing this Court. The first judgment to be rendered by the court is the appointment of five commissioners, who are to make the partition and return their proceedings to court, upon which the final judgment is to be given.
The appeal must be dismissed.