
    McRoberts v. Lockwood et al.
    
      Partition — Character of Action for — What judgment in, may be appealed from.
    
    1. A proceeding for partition of real estate, brought under chapter 9, of Division 7, of Title 1, of the Code of Civil Procedure, is a civil action, although the petition states no equitable grounds for relief; and being within the original jurisdiction of the court of common pleas, and the parties not being entitled to a trial by-jury, the cause may be appealed to the circuit court, under the provisions of section 5226 Revised Statutes.
    2. In such case the final judgment from which an appeal may be taken, is not an order of the court made in confirming or setting aside the proceedings of the commissioners, or of the sheriff in aparting or selling the premises, but, is that which finds the parties to be entitled to partition, ascertains and declares the portion of each and orders the share of each to be aparted to their several owners.
    (Decided May 3, 1892.)
    Error to the Circuit Court of Erie county.
    On November 4, 1887, the defendants in error filed in the court of common pleas of Erie county a petition for the partition of certain lands and tenements in the petition described, making the plaintiff in. error a defendant to the proceedings. The plaintiff in error, defendant in the court of common pleas, interposed no answer, and at the ensuing term of the court a judgment was rendered, finding that the defendants in error and the plaintiff in error owned the premises described in the petition in fee simple as tenants in common, finding the share owned by each party and ordering the share of each to be set off to each of them insever-alty. At the February term, 1888, the judgment was modified by including certain lands that had been omitted in filing the petition. Upon a writ of partition being issued the-lands were aparted by the commissioners named therein, who reported their proceedings to the May term, 1888, of said court of common pleas, at which term they were approved and confirmed. The plaintiff in error being dissatisfied with, the division made by the commissioners, appealed the case to the circuit court. The latter court upon the motion of defendants in error, dismissed the appeal, whereupon the plaintiff in error instituted proceedings in this court to reverse the judgment of the circuit court in dismissing the appeal.
    
      U. T. Curran, for plaintiff in error.
    
      Goodwin, Goodwin & Hull, for defendants in error.
   By the CoüRT.

A proceeding to obtain the partition of real estate, instituted and conducted under Title 1, Division 7, Chapter 9, of the Code of Civil Procedure, is a civil action. Whether the petition states facts of a character to invoke the equitable jurisdiction of the court or not, the action is one in which the parties are not entitled to a jury trial, and of which the court of common pleas had original jurisdiction, and therefore-may'be appealed to the circuit court under the general right of appeal provided for by section 5226, of the Revised Statutes. The judgment, or decree, from which an appeal may be taken, is that which finally determines the rights of the parties. In an action to obtain the partition of real estate, the judgment that finds the parties to be tenants in common, ascertains and declares the share of each and orders the shares so found to be aparted to their several owners, is the one that determines the rights of the parties, and it is from this decree that an appeal in this class of actions may be taken. Whatever the law may be elsewhere, it has not been the policy of this state to allow appeals from orders of the court of common pleas in proceedings, after judgment, such as confirmations of, or setting aside sales of real estate and the like. The action of the court of common pleas in such cases, is reviewable only by proceedings in error. Reeves et al. v. Skenett, Jr. et al. 13 Ohio St. 574.

An order of partition partakes of the nature of an execution, or order of s^le. Proceedings under it may result in aparting the premises, or if they cannot be divided without injury, in their sale. Whether the commissioners apart the premises, or report tbat they are not susceptible to division without injury, and a sale of them is made by the sheriff, the orders of the court of common pleas in approving and confirming, or setting aside the proceedings at their several stages of progress, are not appealable.

Section 5227, Revised Statutes, provides that a party desiring to appeal his cause to the circuit court, shall, at the term the order or judgment is made, give notice of such intention, and, within thirty days after the rising of the court, give an undertaking as prescribed by that section. Notice of his intention to appeal the cause was not given by the plaintiff in error at the term of court at which the final judgment was rendered, nor was his undertaking filed within thirty days thereafter; for which reasons the appeal was properly dimissed.

Judgment affirmed.  