Opinion of the Court-Hawley, C. J.

a judgment in favor of appellant for his costs of suit subsequent to his offer to allow judgment, including the costs of this appeal.

[No. 755.]

ALEXANDER LEPORT, RESPONDENT, v. EDWARD D. SWEENEY, APPELLANT.

IRRELEVANT TESTIMONY-WHEN SHOULD BE STRICKEN OUT.-Where no objection is made to any question asked a witness, if the answer is not responsive to the question or not relevant to the issues presented, the opposing party should move to strike it out.

IDEM-TESTIMONY NOT PREJUDICIAL.-Held, that under the facts recited in

the opinion, the defendant was not prejudiced by the answer of the witness that he cut "all the wood on the land that would roll into the cañon," as under the findings this question was wholly immaterial. INSUFFICIENCY OF EVIDENCE TO SUPPORT THE FINDINGS.-Where it appears to this court that there is as much evidence to support the findings in every particular as there is to oppose the findings in any particular: Held, that this court will not disturb the judgment of the lower court.

APPEAL from the District Court of the Second Judicial District, Ormsby county.

The facts are sufficiently stated in the opinion.

R. M. Clarke, for Appellant.

Ellis & King, for Respondent.

By the Court, HAWLEY, C. J.:

This is an action to recover a sum of money alleged to be due plaintiff upon a written agreement executed by the plaintiff and one F. Marcoal as parties of the first part (the interest of Marcoal having been assigned to plaintiff), and E. D. Sweeney, defendant, as party of the second part, wherein the parties of the first part agreed, among other things, "to cut all the wood" on a certain tract of land belonging to the defendant, and "not to cull or pick the timber on said land, but to cut the timber clean as they go, and to make into cord-wood all the standing and fallen timber suitable for merchantable wood;" also, to recover certain other small amounts for goods, wares and merchandise sold and

Opinion of the Court-Hawley, C. J.

delivered, and for money loaned and advanced to defendant, etc., in all amounting to the sum of $4324.59. The wood, when cut, was to be placed in Big Bend Cañon so that it could be conveniently loaded upon wagons. The defendant, among other things, in said contract, "agrees to pay the said first parties the sum of four dollars and twenty-five cents ($4.25) for each and every cord of good merchantable cord-wood," and to make. the payments at certain specified times, as the wood is cut and delivered.

In his answer, the defendant denies that the parties of the first part complied with the covenants and conditions of said agreement on their part to be performed, and, among other things, alleged that said parties "failed and neglected to cut and split all the wood agreed in said contract to be cut and split by them on the lands mentioned in said contract; and that they cut and split only the timber that was easiest of access, and only such as was easiest to be made into cord-wood; and that there is now standing on the ground timber agreed to be cut in said contract, suitable and sufficient to make seven hundred (700) cords of good merchantable cord-wood, to the damage of "defendant in the sum of two thousand dollars," and prays judgment against plaintiff for the sum of $1960.00, and costs of suit. The case was tried before a referee, who found a judgment in favor of plaintiff for the sum of $3575.39 with costs of suit. The defendant moved the district court to set aside the report of the referee, and for a new trial. This motion was denied. Defendant appeals from the judgment and from the order denying a new trial. There is but one point in the record that is excepted to and assigned as an error of law. During the trial, the plaintiff testified, that he cut "all the wood on the land that would roll into the cañon, and what is left would not roll in." This was objected to by the defendant on the ground that the written contract specified what wood was to be cut. No objection was made to any question asked by plaintiff's counsel; and if this testimony was not responsive to any questions, or was not relevant to the issues presented, the defendant should have moved to strike it out. But it is evident that

Points decided.

defendant was not, and could not have been, prejudiced by this answer.

The referee in one of his findings states: "That there is still some timber standing upon the tract of land described in said contract that has not been made into wood by the plaintiff, but that the plaintiff is not entitled to pay to the defendant any damages for not converting the same into cordwood for the reason that the defendant failed to comply with his part of the contract in not making the payments as he agreed to. Whether the timber left standing would have rolled into the cañon, or not, was, in view of this finding, supported as it is by the testimony, wholly immaterial. The only other question to be considered, is whether the evidence is sufficient to justify the findings and the judg ment. The defendant specifies several particulars wherein. he claims that the evidence is insufficient and upon which he relies for a reversal of this case. From the testimony, considering it in the most favorable light for the defendant, we think there is at least as much evidence upon the part of the plaintiff to support the findings in every particular as there is upon the part of the defendant to oppose the findings in any particular. In such a case this court will not interfere with the judgment of the lower court. The judgment of the district court is affirmed.

[No. 817.]

JOSEPH DONDERO, APPELLANT, v. HENRY VANSICKLE, RESPONDENT.

PARTITION OF LANDS HOW MADE.-The district court can order a partition to be made, but it cannot itself make the partition except in the indirect mode of confirming the report of the referees appointed for the purpose of carrying out the order of partition.

IDEM.--When the court decides in favor of a partition being made, it should appoint referees and direct them to divide and mark out the laud, including the improvements into parcels of equal value, instead of making the division into parcels of equal area.

IDEM SEVERANCE OF IMPROVEMENTS.— -A severance and removal of improvements, which are a part of the realty, from one parcel of the land to another in order to equalize their values, is not authorized by the statute, and would generally be injurious to the interests of the co-tenants.

Argument for Appellant.

IDEM.If the land cannot be divided into parcels of convenient shape and situation without throwing the valuable improvements into one tract, then, unless the value of the land in the other tract is greater than the one on which the improvements are situated, it should be increased in area until it is equal, quantity and quality considered, to the remaining tract, with the improvements included.

IDEM PERSONAL PROPERTY.-A decree ordering a partition of certain personal property, not mentioned in the pleadings is clearly erroneous.

APPEAL from the District Court of the Second Judicial District, Douglas County.

The facts are stated in the opinion.

Ellis & King, for Appellant.

I. The interlocutory decree is made without authority, and in excess of the jurisdiction of the court. Sections 277 to 280 of the civil practice act outline the course of procedure fully and distinctly, where partition and not a sale is ordered. The decree strips the referees of their judicial functions and makes them the unreasoning puppets of the court. (Brown v. Bulkely, 11 Cush. 168.)

The reasoning addressed to the court, that because it was competent in the district court to set aside any report of the referee, that, therefore, it was competent in the court to do the work of the referees, if followed to its legitimate conclusion, would establish the proposition that because this court can reverse, affirm, or modify a judgment of a district court, that it might therefore try the same cause in the first instance.

The question as to how the land could be divided, that is as to where the lines should run and area to be apportioned or partitioned to each, was not an issue in the case, and therefore neither party was called upon to meet it, and this court will not assume that any evidence was given upon this point. (Freeman on Co-tenancy and Partition, secs. 518 to 522.)

II. The preliminary decree is erroneous in this, that it provides for the removal of certain buildings from one part of the land to another part. It is no more in the power of the court or referees to make this order or decree, than it is to order the same buildings razed or destroyed by fire.

Opinion of the Court-Beatty, J.

III. The order is erroneous in this, that it acts upon and decrees the partition of certain personal property; which property is neither mentioned in any of the pleadings in the cause, nor within the purview of the statute under which the proceedings are taken, which is applicable alone to realty.

Thomas H. Wells, for Respondent.

I. Unless there is error apparent on the face of the interlocutory decree, both must be affirmed, as no motion was made for a new trial, and no statement or assignment of errors is made in the case. (See Pr. Act, secs. 330 to 337.)

II. If the court below misconstrued the provisions of the statute in making the order as to how the land should be divided, yet as no wrong to appellant is shown, or even asserted, and as re-partition would, presumably result as in the first instance, the court should not reverse the case.

A judgment in a civil cause will not be reversed simply because of technical error, if no prejudice be shown, nor right be infringed nor damage suffered.

In support of these views counsel cited the following authorities: Seale v. Sota, 35 Cal. 102; Hastings. v. Cunningham, 35 Cal. 549; Regan v. McMahon, 43 Cal. 625.

By the Court, BEATTY, J.:

The parties to this action are co-tenants of a tract of land, and the suit is for a partition or sale of the common property. There was an interlocutory decree ordering a partition and appointing referees, and a final decree confirming their report of the partition made. The plaintiff appeals from both decrees.

The interlocutory decree, after reciting the finding of a jury (impaneled to try that issue), that partition can be made without prejudice to the owners, proceeds as follows: "Wherefore, in accordance with said verdict (the court having personally viewed the land and premises in controversy, and being satisfied therefrom and from the evidence in the cause given at the trial thereof, that said verdict is