Coeur d'Alene evening press. (Coeur d'Alene, Idaho) 1907-1929, 1908-12-07
DECIDED
FOR THIRD TIME
Suprsme Court Hands Down
Opinion Involving Parti-
ton of Real Estate.


Few litigations are accorded the
distinction of being before the SUI
Oreme court for hearing three times
and having opinions passed by the
state court, but such Is the history
n a peculiarly constituted action for
the partition of real property
entitled A. C. Richardson and Walk
d Richardson VS.. Richard Rudy, E.
Conrad, c. E. Newton, j. j. Mara
heck, Math Jacobs and A. A. Kincaid,
appealed from the district court of
Nez Perez county three times and in
vhich the supreme court handed down
It's third opinion today, affirming the
decision of Judge Steele denying the
notion to set aside an interlocutory
decree and the order confirming the
report of the referees.
The first appeal presented to the
supreme court for review an interlo-
Cutory order or decree rendered by
the trial court on March 16, 1908.
The supreme court passed upon the
suficiency of the complaint and held
that the trial court had power and
jurisdiction to enter an interlocutory
decree directing the partition of the
property involved. In other words
the judgment OF the trial court was
affirmed in the first opinion handed
by the state court
Upon the second appeal to the SUI
preme court the question of continu-
ance was again presented, the court
holding that the matter was disposed
Of on the former appeal. The matter
before the court on the second appeal
arose out of the report of the referees
and the Judgment of the trial court
thereon. The judgement 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
ehe lduu III controversy.
The third opinion handed down by
the court in this case affirms the de-
cision of Judge Steele in denying the
motion to set aside the interlocutory
decree and the order confirming the
report of the referees. The opinion
is written by Judge Stewart and is
concurred in by Justice Ailshie and
Judge Sullivan. The syllabus by the
court follows:
The interlocutory decree, entered
In an action for the partition of real
property, determines the right to par
'itiOn and fixes the respective rights
Oh the parties. as ascertained by the
court
The report of the referees appoint
90 to PARTITION real property, presents
merely the question, whether said
referees made the partition in ac
cOrdance with the decree of the court
Inc hearing of the report of ref
efees,appointed to partition real prop
cry should be merely for the purpose
VI aseertaining whether such referees
carried out the directions of the
court and evidence should be receiv
Gu at such hearing directed to thii
question only, except when such re
port involves the question whethe
the referees acted eai,t,, - o,,,,f4 a
bly,.
jurisdiction over the subject-mat
VET Is the right of the court to exer
use judicial power over that class o
Eases not the particular case befor
y out rather the abstract power Il
ny case of the Kind or charatce
'he one pending, and not whethe
Ae particular case is one that pre-
eus the cause Of action, or undo
e particular facts is triable befor
me court in which it is pending. be
>AuSe OF some inherent facts whicl
lS' and may be developed durin
whether the particular facts of tn
authorize the trial court to en-
ueeree for the partition of rea
s.Operty, does not involve the juri:
s.eeion Of the court to act in sue
tLnnfNnuaasH