Backus v. Stilwell

¶1A proceeding for the partition of lands is clearly an action, within the definition contained in the second section of the code. It is insisted by the counsel for the Defendant that the proceedings for partition being provided for by the third title of chapter five of the third part of the Revised Statutes,” are by the 390th section of the code excepted from its operation, and that, therefore, such proceedings can only be instituted by petition as prescribed in the title of the Revised Statutes referred to. But I think the section of the code upon which the Defendant relies to sustain his position, cannot be so construed; for after excepting from the operation of the code certain proceedings authorized by the Revised Statutes, including partition, the same section proceeds to say “ that when, in the course of any such proceedings, or in consequence thereof, *319a civil action shall he brought, such action shall be conducted in conformity to this act.” If, therefore, proceedings for partition are within the definition of an action, it follows that such action must be instituted in the manner prescribed by the code. That such was the intention of the commissioners who framed the code appears from the 103d section, which declares the action for the partition of real property to be a local action, and the 109th section also provides that in “an action for the partition of real property,” the service of a copy of the complaint may in certain cases be dispensed with. I cannot doubt that this • action is well brought. Indeed I think it could only be brought in this manner. The motion must therefore be denied.