Swithenbank

This is an action for the partition of personal property. The defendants Charles W. Wood and Lena Wood have appealed, on the judgment-roll alone, from *343 the parts of the interlocutory decree which award the plaintiff the increase of certain sheep and lambs “from and after August 26, 1926,” and the wool therefrom during the same period, and also the increase of other livestock from and after July 16, 1926. The court found the following facts:

April 16, 1921, Mary Jane Swithenbank and others leased the Swithenbank ranch, together with the livestock and other personal property thereon, to the defendant Charles W. Wood for a term expiring July 16, 1926. Plaintiff then had no interest in such property. The ranch is agricultural land. The rental provided in the lease was $1600 for the first year and at the rate of $1700 a year for the remainder of the term for both the real and personal property. The lease provided that at the expiration of the term Wood was to leave on the premises a stated number of different kinds of livestock, concerning which there is no controversy. February 14, 1922, Mary Jane Swithenbank died and, upon the settlement of her estate, there was distributed to…

rehearing. Referring to the finding quoted in the opinion to *346 the effect that as a part of the transaction relating to the exchange of bills of sale by the parties the “plaintiff stated to said defendant Wood that said sheep would not be segregated or separated until a sale or partition of said ranch,” petitioners say: “In view of the foregoing finding it is evident that the refusal on the part of plaintiff to execute a new lease upon or just prior to the expiration of the old lease did not take the case out of the requirements laid down in subdivision 2, section 1161, of the Code of Civil Procedure.” The finding referred to is of a mere evidentiary fact, not responsive to any issue in the ease. It does not appear that the defendants consented to or that the parties agreed upon such postponement of the segregation and separation of the sheep until a sale or partition of the ranch. It was within the exclusive province of the trial court to determine whether such evidentiary fact, together with the presumption relied upon by the defendants, or .the evidence to the contrary was of the greater weight.

Petitioners contend .that the evidence is insufficient to overcome such…

This is an action for the partition of personal property. The defendants Charles W. Wood and Lena Wood have appealed, on the judgment-roll alone, from *Page 343 the parts of the interlocutory decree which award the plaintiff the increase of certain sheep and lambs "from and after August 26, 1926," and the wool therefrom during the same period, and also the increase of other livestock from and after July 16, 1926. The court found the following facts: April 16, 1921, Mary Jane Swithenbank and others leased the Swithenbank ranch, together with the livestock and other personal property thereon, to the defendant Charles W. Wood for a term expiring July 16, 1926. Plaintiff then had no interest in such property. The ranch is agricultural land. The rental provided in the lease was $1600 for the first year and at the rate of $1700 a year for the remainder of the term for both the real and personal property. The lease provided that at the expiration of the term Wood was to leave on the premises a stated number of different kinds of livestock, concerning which there is no controversy. February 14, 1922, Mary Jane Swithenbank died and, upon the settlement of her estate, there was distributed…