On Petition eor Behearing — Overruled.
Sherwin, J.Both parties ask that the opinion be
made more specific in certain particulars, and that directions be given as to future proceedings in the case. It was not the intention of the ° original opinion to set aside the judgment and order of partition. It was the sale under such judgment and the order approving the same that were set aside. In view of the present situation, we think that a new referee and new appraisers should be appointed, and that the entire tract of land should be reappraised and sold, after such timely notice as the district court shall order. The sale may be either public or private. The defendant shall not be a purchaser at such sale so long as he remains the trustee of said estate, unless the plaintiffs consent thereto; but with their written consent he may become such purchaser. The costs of the former appraisement and sale will be taxed to the defendant individually.
Since 'the decision herein was handed down, the defendant has filed a motion to dismiss the appeal on the ground that certain persons not parties to the action were not served with notice of appeal. It is true that the plaintiffs at,one time asked leave to bring in new parties; but the defendant resisted, and the trial court sustained such resistance. The persons named never became parties to the action or judgment, and hence were not coparties, upon whom notice of appeal must be served. The motion to dismiss the appeal is therefore denied.
The petition for a rehearing is overruled. '