action, all claim to be joint owners of a certain water ditch taking water from Connor creek to Red Hill, for mining and other purposes.

The respective claims and ownership of the volume of water, are such that the parties could not agree, nor could a partition be well made; hence plaintiffs ask judgment and decree for sale of the entire property, and distribution of the proceeds.

After hearing a large mass of testimony, and recurring to a former action of same nature on same property, decided in 1874, in which McGillivray was plaintiff the court, concurring in the opinion then expressed by the Supreme Court, gave judgment that plaintiffs were entitled to relief, and decreed that the property should be sold, and the proceeds distributed;—and referees were appointed. Motion for new trial;-appeal taken by defendants, April 23, 1877. C. E. Williams and Howe & Rosenbaum, attorneys for plaintiffs and respondents.

Burch & Griffith, and Jno. G. Irwin & E. P. Lovejoy, for defendants and appellants.

OPINION BY THE COURT.

Proceedings may be instituted by any of the cotenants of real property, as provided in the Code of Civil Procedure (section 752), for a partition thereof according to their respective rights, or for a sale thereof if it appear that the partition cannot be made without great prejudice to the owners. But whether partition is to be ordered or a sale directed, it is indispensable that a decree, interlocutory in its character, be first entered, definitely ascertaining the rights and interests of the respective parties in the subject matter. In case a sale is to be directed, it is impossible for any party, in the absence of such an interlocutory degree, to know whether he is interested in maintaining or resisting the proceedings.

The interlocutory decree entered below in this case is entirely silent as to the quantity or interest of either of the parties to the proceedings, and is erroneous in that respect. It is true that the Court has announced certain conclusions of law which, if they should be adhered to below, would go far to furnish the basis for such a decree; but the parties cannot bring an appeal from these conclusions, but only from the interlocutory decree itself, which decree when properly entered will become conclusive of their respective rights unless such appeal be taken therefrom within sixty days from its entry in the minutes of the Court. (Code of Civil Procedure, section 939, subdivision 3.)

Decree and order denying a new trial reversed and cause remanded for a new trial. Remittitur forthwith.

[No. 5615.]

[Filed April 19, 1878.]

JAMES ET AL. vs. JOHN CENTER ET AL.

Appeal from Thirteenth District Court, Fresno County, ALEX. DEERING, Judge.

PRACTICE AND PLEADINGS.-DISMISSAL OF ACTIONS.-COUNTER-CLAIMS. —A plaintiff has right to dismiss his action, before trial, in the absence of a counter-claim.-Entry of judgment of dismissal by the Clerk is proper when no counter-claim has been made. (c. c. p 581.)

Matters set forth in cross-bills,-not arising out of the transaction set forth in the complaint, and not connected with the subject of the action,-do not constitute a counter-claim.-(c. c. P 438, sub. 1.)

An order made after rendition of judgment is subject of appeal.

STATEMENT OF THE CASE.

The Legislature, by Act of April 11th, 1857, granted four persons, called "Legislative Grantees," the right to reclaim certain swamp and overflowed lands in Fresno and Kern counties, between the San Joaquin River and Tulare Lake, and to construct and operate a canal from the river to the lake, and to Kern lake; and the right of way through any State lands, and two hundred feet each side; and one-half of the reclaimed land if reclaimed inside of five years. The canal was begun in the time prescribed; then the four “Legislative Grantees" conveyed their privilege to one Cobb and Brown, who agreed, in consideration, to hold three-quarters of said lands and proceeds in trust for the grantors. Afterwards, in June 11th, 1871, Cobb and Brown agreed with John Center and others, for the construction of the canal, and they formed the corporation known as the "Visalia Canal and Transportation Company," on June 11th, 1861. In 1862, the Legislature amended the originial Act, giving three years more time in reclaiming the lands, and divided them into three districts, granting the one-half of the lands in any one of them upon the 'completion of the canal, and reclamation therein. Then immediately John Center et al., abandoned the whole project, and so declared to Cobb and Brown, etc.,-who also abandoned.

Then Thomas Baker and Harvey S. Brown, relying on the abandonment, purchased of the "Legislative Grantees," all their intercst for $10,000—goț from the Legislature a further act of relief, and at once commenced reclaiming, and completed samne in time, and satisfactorily to the Governor and Surveyor General, and on November 11, 1867, a patent was issued-called the "Montgomery Patent." Ever since the abandonment, Baker and Brown are all who have held poseession of the lands, paid taxes, etc. Center asserted no posses

sion till recently-yet, on April 1st, 1862, Center, et al, conveyed to one Clarkson 1,300 acres of said land, and he to C. H. Wakelee, and he conveyed portions of same to others, who all had notice of the abandonment by Center, et al. On May 15th, 1874, Delos Lake claimed to have obtained from the "V. Canal and T. Co." coupons calling for most of said land, without any consideration,

and on same day, he, without consideration, conveyed to Center and Boyd as joint tenants all of said interest.

And now Jefferson G. James, and 33 others, as owners through the completed title and patent, bring action against Center and 35 others, to quiet title; and, after various demurrers, denials, and cross bills, plaintiffs finally dismiss the action before reaching trial—and defendants recover costs-by judgment rendered February 15th, 1877.

On February 10th, 1877, an order was made to recall dismissal, and on March 2d, 1877, trial of the cause was set for March 12th, 1877.

Appeal was taken by plaintiffs from this restoration to the calendar, on the ground that the order was beyond the Court's jurisdiction, being set for the next term, when the power of the Court had expired,

Stetson & Houghton, and Wigginton & Marks, attorneys for plaintiffs and appellants. and McAlllster & Bergin, of counsel.

Clark Churchill, and J. H. Brewer, attorneys for defendants ane respondents. Nourse & Phelps, attorneys for Stephen W. Shaw.

OPINION BY THE COURT.

The judgment of dismissal in form, entered by the clerk was properly entered, inasmuch as no counter claim had been made, (C. C. P. 581.)

The matters set forth in the cross bills, so called, did not constitute a counter claim, because not arising out of the transaction set forth in the complaint and not connected with the subject of the action, (C. C. P. 438, sub. 1.)

The order appealed from was an order made after judgment and therefore the subject of appeal.

The order setting aside the jndgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter claim. Order reversed.

[No. 5796.]

[Filed April 18, 1878.] HERSHEY vs. DENNIS.

Appeal from Sixth District Court, Yolo County, S. C. DENSON, Judge.

MORTGAGE REDEMPTION-DEFICIENCY-SHERIFF'S DEED. -No lien for a docketed deficiency on a mortgage sale, can attach to the premises sold, after a declaration of homestead.

The mortgagee, therefore, is not authorized to redeem from the purchaser at the mortgage sale, hence the purchaser can acquire no right as redemptioner from a reassignment by the mortgagee.

The mortgagor, or his grantee, can redeem from the purchaser on payment of his bid and costs; hence, he having tendered to the sheriff a sufficient sum to redeem, the sheriff can not execute a deed to the purchaser, or assignee of the mortgagee.

STATEMENT OF FACTS.

On Febrnary 24th, 1874, H. W. Diehl and wife, owning certain land in Yolo Co.-mortgaged it to Geo. Geary and D. Frazer,-and on next day, again mortgaged same to J. R. Barret. On January 5th, 1875, Diehl and wife made a Homestead declaration on the premises. In April, 1875, an action was brought to foreclose the Geary and Frazer mortgage. Barret filed a cross complaint claiming judgment on his mortgage. On January 21, 1876, Barret assigned his mortgage to Benj. Dennis. On February 2, 1876, judgment was entered foreclosing both mortgages,--directing sale of the property and applying proceedsFirst, to pay Geary and Frazer, then the Barret mortgage.—and directing a docket entry in B.'s favor for any deficiency.-Sheriff sold to Dennis for enough to cover first mortgage and a portion of the second, but leaving a balance of $1,287.99 on the Barret mortgage, held by Dennis, by assignment, which was docketed against Diehl. On May 17, 1876, Barret produced a copy of this docket, paid Dennis $5,105.70 as a redemption of the property, and received a certificate of redemption. On the same day, Barret assigned this certificate back to Dennis. On October 21, 1876, Diehl and wife granted the premises to plaintiff Hershey, and on the same day he tendered to the Sheriff $5,650, to redeem the property-on his own account, and not for Diehl and wife. The officer refused the tender, and on October 25th, executed a deed to Dennis, not as purchaser, but as assignee of redemption, upon which Hershey brought suit in December, 1876. On April 13th, 1877, a judgment was rendered in favor of defendant Dennis, for his costs, and against plaintiffs Hershey, and Diehl and wife, who take nothing by the action. Trial was by Court, without jury, and plaintiffs filed bill of exceptions and moved for new trial,-which was denied,and appeal taken August 13th, 1877.

J. C. Ball, and J. W. Armstrong, attorneys for plaintiffs and appellants. W. B. Treadwell, and E. R. Bush, attorneys for defendants and respondents.

OPINION BY THE COURT.

Assuming, for the purposes of this case, that Barrett had a lien by virtue of the docketed deficiency arising from the mortgage sale, except for the homestead, it is plain that no such lien could attach after the declaration of homestead.

Barrett, therefore, occupied no such relation to the property or parties as authorized him to redeem from the purchaser at the mortgage sale; and Dennis, the purchaser, acquired no right as redemptioner by reason of a reassignment from Bar

rett.

It follows that the martgagor or his grantee could redeem from Dennis on payment of the amount of his bid and costs, etc. The plaintiff having tendered a sufficient sum to redeem, the Sheriff had no power to execute a conveyance to the defendant Dennis.

Jndgment and order reversed and cause remanded for a new trial.

[Mr. Justice Crocker did not express an opinion in the case.]

REIDY vs. SCOTT ET AL.

Appeal from Tirteenth District Court, Merced County, J. B. CAMPBELL, Judge.

JUDGMENT BY DEFAULT.-DEFENSE.-A judgment by default may be opened where the affidavit of merit in the defense is suffieient,-i. e.,-supported by facts in the answer filed, which, if proved, would constitute a meritorious defense,-being "based on a full and fair statement of all the facts of the case."

STATEMENT OF FACTS.

This is a case of judgment by default for plaintiffs against defendants.— John L. Reidy and Joseph Nolan commenced an action against Samuel Scott and Mary S. Scott, in which process was regularly served on defendants, but they failed to answer, and hence, judgment by default was entered by the Clerk of the Court on May 7th, 1877. On July 5th, 1877, defendant moved to set aside the default, and for privilege to file answer, alleging fact of a mistake by detention of his answer in hands of Wells, Fargo & Co., and its only reaching Merced on Sunday, May 6th, and could not be filed till 7th, on which day the default was entered.—Affidavits of defendant, and his attorneys also set forth his having a good defense, etc. But on July 27th, the motion was denied,—and an appeal was taken both from the judgment, and the order. Bodley & Campbell, and Chas. H. Marks, counsel for defendant and appellant.

R. H. Ward, and P. D. Wigginton, attorneys for plaintiff and respondent.

OPINION BY THE COURT.

If the affidavit of merits is sufficient, we are satisfied that, under the views expressed in Watson vs. S. F. and H. B. R. R. Company, 41, Cal., 17, the Court should have granted the motion to open the default. The answer, which was filed on the same day the default was entered, states facts which, if proved, would constitute a meritorious defense. The statements in the affidavit of defendant that, he is advised that he has a "good and perfect defense," and in the affidavit of his attorney that, in his opinion, defendant has a good defense, although in artificial averments of the fact that he has a defense on the merits, are to be referred to the answer actually filed. In People vs. Rains, (23 Cal., 129,) the affidavit of the