
    Farrar v. Newport & Al.
    In an action of partition the omission of some of the defendants to appeal cannot affect the right of the others to do so. — 3 L. 128, and cases there noted.
    But where one of several defendants in a judgment decreeing- a partition, appeals, h& must mah¿> all his co-defendants appellees or parties, as Tvell as the plaintiff, ortho appeal will' he áisanfesed.
    Appeal from the court of prohates for the parish of West Feliciana.
    This is an action of partition. The plaintiff alleges he is a co-proprietor and owner of one undivided third part of a tract of land; and that Newport and wife, and Sarah Young, Ann F. Young and husband, and Sarah Eliza Young, a minor, are all interested and co-proprietors of the other two thirds, and that it is necessary to have a sale in order to effect a partition.
    The defendants were all made parties and one of them Joined in the [847] prayer for a partition. Separate answers were put in by tbe others, and various matters set up against tbe partition as demanded.
    There was judgment decreeing a partition hy licitation or sale of the land n question on a credit of one, two and three years, and the motes of the purchasers to he divided among the parties, so that the plaintiff and one of the heirs or defendants joining in the petition he allowed their sharss oat of them. The defendants, Newport and wife, alone appealed. The appeal was taken against the plaintiff and appellee alone, and bond given accordingly.
    Patterson, for the plaintiff,
    moved to dismiss the appeal for want of proper parties, and- that all the other parties to the suit were not cited and made appellees.
    
      Boyle and Lyons for the appellant.
   Simon, J.

delivered the opinion of the eourt.

This is an action of partition. Plaintiff, as vendee of two of the heirs and legatees of Robert Young, who left six children, represents himself to he the owner in common with all tbe other heirs of tbe deceased, (four in number,) of one undivided third of a traet of land belonging to and proceeding from tbe succession of bis vendor’s father. He prays that tbe said tract be sold, aud that tbe proceeds thereof be partitioned among tbe eo-preprietors according to their respective rights thereto.

The four defendants were all legally cited; one of them joined the plaintiff in praying for a partition, two of the others joined issue by denying tbe plaintiff’s right of action and pleading other matters in avoidance and the fourth defendant, wife of Newport, having failed to file an answer, a judgment hy default was taken against both husband and wife. The case was regularly tried, and the court of probates having rendered a judgment of par-[348] tition and ordered the sale of the property according to the plaintiff’s petition, defendant, Newport, took the present appeal.

A dismissal of the appeal has been prayed, on the grounds that all the co-proprietors of the property sought to he partitioned are not before this court; that only one of the defendants has appealed, and that this court cannot proceed to reverse a judgment of partition, in the absence of some of the parties thereto.

We are of opinion the appeal ought to be dismissed.

It is true this court has decided that the omission of some of the defendants to appeal cannot affect the right of the others to do so. Burke v. Erwin's heirs, 6 La. Rep. 323. We are not ready to controvert this rule, which, on the contrary, appears to us to be a proper and safe one to adopt for the protection of the rights of suitors who, thinking themselves -aggrieved by a judgment, would sometimes he without remedy, if their right to appeal was to depend upon the will and disposition of their co-defendants; but in a ease ©f partition, which from its nature requires the presence of all the interested parties, of all the co-proprietors of the property sought to be divided, La. Code, arts. 1238, 1331, 1234, 1246; Code of Practice, arts. 1024,1025, we sue unable to conceive how we could, in the absence of some of the co-pa/rtagecmts, inquire into, revise or modify a judgment ordering a partition of the common property.

Suppose, in this case, we should he of opinion that the decree of partition appealed from by Newport, ought to he modified so as to order the property tto be divided in Mud and not by a sale; our judgment would present the singular anomaly of directing the division in kind as between the appellant and appellee, whilst with regard to the other co-proprietors, who would bo satisfied with the result of the ease in the court below, the judgment of the lower tribunal, ordering it to be made by a sale, would be acquiesced in, and would acquire the force and effect of res judicata. It seems to us that [349] the proper course to have been pursued in this case by the appellant, should have been, to cite bis co-defendants as appellees before this court, if they refused to join him in the appeaL Having not done so, his appeal must be dismissed.

It is therefore ordered and decreed that the appeal be dismissed at the costs of the appellant.  