Keller v. Judson

Labauve, J. This is a suit in partition of six squares of ground, owned in common by plaintiff, for one undivided half, and the defendants, four in number, for the other undivided half. The Court below rendered a judgment, decreeing the partition and the .sale for cash of the property described in the petition. The syndic, Mills ■Judson, took this appeal. [283] The plaintiff and appellee contends in this Court that the appeal should be dismissed, because the appellant has not brought up the evidence nor a statement of facts, to enable this Court to say whether or not the evidence showed that the property can be divided in hind; that the appellant has not filed an assignment of error as prescribed by Art. 897, C. P. The position taken by the said appellee to dismiss this appeal, is untenable. There is no motion to dismiss the appeal; if made now, it could not be sustained. This appeal wasmadereturnable on thefirst Monday in November, 1865, and was filed here before that day; the certificate of the clerk is in due form, and shows that the record contains all that transpired below, and gives us a full knowledge of the matters argued or contested in the lower Court. Articles 895 and 896 C. P. It is only in the absence of the certificate prescribed by Article 896, above quoted, that the appellant must comply with Article 897, C. P. We have carefully examined the record, and we have been unable to find any evidence showing that the property in question is indivisible by its nature, dr that it cannot be conveniently divided without a diminution of its value, or loss or inconvenience to one of the owners, in consequence of dividing it. C. C. Arts. 1261, 1262. It seems to be only on proof of indivisibility by its nature or inconvenience in dividing it, that the Judge is authorized to order the sale of the common property. We are therefore of the opinion that the judgment of our learned brother below is erroneous; the case must be remanded to be proceeded in according to law. It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that the case be remanded to be proceeded in according to law, and that the plaintiff and appellee pay the costs of this appeal.