Shirran

The petition for a rehearing of this cause in the supreme court is denied.

We base this action upon the proposition that upon the face of the record of the judgment in the case of Shafe & *424 Post v. Dallas, mentioned in the opinion of the district court of .appeal, there was sufficient evidence of the service of the summons on Dallas to give the clerk prima facie authority to enter the default and judgment against him. We do not approve of that part of the opinion of the district court which appears to indicate or decide that the presumptions of jurisdiction upon a judgment thus entered by the clerk are the same as those which attend a judgment entered in pursuance of judicial action by the court. (See Kelly v. Van Austin, 17 Cal. 564 ; Bond v. Pacheco, 30 Cal. 533 .) But as the authority of the clerk to enter the judgment appeared from the face of the record, the doctrine just stated is not essential to support the conclusion of the district court that the judgment was valid. (Providence Tool Co. v. Prader, 32 Cal. 634 , [ 91 Am. Dec. 598 .].)

This is an action for the partition of the lands described in the complaint. The court found that the property affected by its decree was so situated that partition thereof could not be had without “great prejudice” to the owners of the same, and, accordingly, decreed a sale thereof *408 by a referee appointed by the court for that purpose, such sale or sales to be subject to the confirmation of the court and the proceeds thereof to be paid by said referee into court “to abide the further order of this court.”

The intervener, John Dallas, appeals from the interlocutory decree so entered and from the order denying his motion for .a new trial.

The facts of the several transactions which are pertinently connected with this litigation are not controverted and are correctly stated in the brief of the respondent as follows:

*410 It will be observed, that the plaintiff’s title to the lands in dispute is derived from the sheriff’s deed, executed and delivered upon the sale of said lands under the execution issued upon the judgment rendered and entered in the case of Shafe & Post v. John Dallas. The principal objections urged against the plaintiff’s title involve a collateral attack…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 407 This is an action for the partition of the lands described in the complaint. The court found that the property affected by its decree was so situated that partition thereof could not be had without "great prejudice" to the owners of the same, and, accordingly, decreed a sale thereof *Page 408 by a referee appointed by the court for that purpose, such sale or sales to be subject to the confirmation of the court and the proceeds thereof to be paid by said referee into court "to abide the further order of this court." The intervener, John Dallas, appeals from the interlocutory decree so entered and from the order denying his motion for a new trial. The facts of the several transactions which are pertinently connected with this litigation are not controverted and are correctly stated in the brief of the respondent as follows: "On the 9th day of April, 1873, Charles Dallas was the owner of the land in controversy, and was a single person, and had the following children by a deceased wife, to wit: John Dallas, Robert Dallas, Mary Hickman, Belle…