This is an action brought under the provisions of title 10, chapter 5 of the Revised Statutes of Idaho, for the partition of certain real estate lying in Idaho county, and to have the defendant, Richard Ruddy, declared trustee for the benefit of plaintiffs and defendants named in the complaint. It is alleged in the amended complaint that the plaintiff, Walker Richardson, and the defendants, Richard Ruddy, E. Conrad, C. E. Newton and A. A. Kincaid, acquired title as joint tenants to the real estate described in the complaint and that they are *156now in possession thereof. That said premises were acquired by said plaintiff, Walker Richardson, and defendants from the United States government for the purpose of and as a townsite by filing certain government script with the proper United States-officials and by payment of the sum of money required in such cases by the laws of Congress; that by agreement the recorded title to said premises was to be granted by the government to the defendant Ruddy, as trustee for said plaintiffs and defendants,, and that he now holds the legal title to all of said premises.
The specific interests of the plaintiffs and defendants, so far as known, are alleged and set out in the complaint. The prayer is for a partition of said premises and that the defendant Ruddy be compelled, by proper decree, to execute and deliver good and sufficient deeds to both the plaintiffs and defendants to their respective interests in said land and for general relief. The defendants Ruddy, Jacobs, Marasseck and Conrad filed separate-answers denying all allegations of the complaint; Kincaid filed his answer admitting all of the allegations of the complaint, and joined with the plaintiff in a prayer for a partition of the premises. The case was tried by the court without a jury, and an interlocutory decree entered by the court directing that upon the coming in of the report of the referees hereinafter referred to, that final judgment be entered as to Richardson and Kin-caid. In said decree the court determined the interest of plaintiff, Walker Richardson, and defendant, A. A. Kincaid, and ordered a partition of said premises as to them, and appointed three disinterested freeholders to make said partition and a survey of the premises, if necessary, and report the result thereof to the court. The court made no findings or decree as to the interest of the other parties to this suit, but ordered on the coming in of the report of said referees that the action be severed,, leaving the action to proceed as to the remaining parties to the-suit. From said judgment and order overruling the motion for a new trial, this appeal is taken. Counsel for respondent moved to disputes the appeal from the judgment on the ground that the-judgment entered was not a final but an interlocutory judgment,, and that the appeal was not taken within sixty days after entry of said judgment. The record shows that the judgment was, *157filed October 15, 1903, and that the appeal was taken on the third day of February, 1904. The provisions of subdivision 3 of section 3807, Bevised Statutes, provide, among other things, "that an appeal may be taken from the district court to the supreme court within sixty days after the order or interlocutory judgment is made and entered. The appeal from said interlocutory judgment not having been taken within sixty days from the date of its entry, must be dismissed and said motion sustained. That leaves the appeal from the order denying a new filial to be considered.
It appears from the record that defendants interposed a motion for- a continuance, which was denied by the court; this is assigned as the first error. We have examined the affidavits fro and con used on the application for a continuance, and we •are unable to say that the court abused its discretion in overruling said motion.
It is also contended that the court erred in decreeing a partition so far as the plaintiff, Walker Bichardson, and defendant, A. A. Kincaid, were concerned, leaving intact and undetermined the share, interest or estate of the other parties to the suit. Mr. Knapp in his work on Partition at page 211, says: “In such ■case the interlocutory judgment must direct a partition as between those whose share has been determined and the other parties to the action, leaving intact the share, interest or estate of those that are undetermined. And where the shares and interest of two or more parties have been ascertained and determined, the interlocutory judgment may also direct the partition among them of part of the property proportionate to their aggregate share; and the court, from time to time, may determine as to the other rights, shares and interests, and render another and further interlocutory judgment, directing a partition, in like manner, of the undetermined parts and portions of the property.”
The provisions of section 4568 of the Bevised Statutes provides for partial partition in cases of this kind. The court did not err in mailing the partial partition of said premises.
The plaintiff was permitted to amend the complaint in some minor particulars over the objection of counsel for the defend*158ants, and it is contended that said amendments were not served on four of the defendants, which action of the court is assigned as error. The amendments referred to were made in open court during the trial of the case and the counsel for the defendants were present. After said amendments were allowed no continuance of the cause was asked for, and it is not intimated that defendants were taken by surprise and not ready to meet the complaint as amended.
(August 10, 1904.) [77 Pac. 973.]The next error assigned relates to the insufficiency of the complaint. On an examination of its allegations we find that it states a cause of action and is amply sufficient. Many of the errors assigned relate to the admission of proof of a verbal contract for the conveyance of real estate. But the evidence clearly shows that this case does not come within the statute of frauds, and the admission of such evidence was not error.
A number of letters were introduced in regard to this real estate transaction. It was not error to admit said letters, as they referred to the transaction out of which this suit arose. The evidence is amply sufficient to sustain the findings and judgment of the court. After a careful examination of the complaint and the evidence introduced in support of it, we conclude that the complaint states a cause of action, and the findings and judgment are supported by the evidence. The judgment must be affirmed and it is so ordered, with costs in favor of the respondents.
Stockslager, J., and Ailshie, J., concur.