## Facts

- Albert Swarthout and J. Dale Gentry were partners in a cattle business that included personal property and real property used in the enterprise.
- Swarthout sued for dissolution and accounting of the partnership and sought partition of the real property; Gentry contended the realty was partnership property.
- In an earlier appeal, the judgment was reversed because the evidence showed the real property was a partnership asset rather than property held as tenants in common.
- On remand, the parties filed no amended pleadings and stipulated that all accounting issues were fully settled, leaving only the distribution of partnership assets for decision.
- The trial court found that dividing the partnership real property in kind was fair and feasible without serious loss, and that sale would cause serious prejudice and loss.
- The court ordered partition in kind and appointed three referees to carry out the division and report on easements, rights of way, and any inequities in value, subject to court approval.
- Gentry appealed from that order; Swarthout moved to dismiss the appeal as taken from a nonappealable interlocutory order.

## Issues

1. Whether an order in a partnership dissolution proceeding that determines in-kind division of partnership real property and appoints referees to implement the division is a final, appealable order or a nonappealable interlocutory order.
2. Whether the trial court properly selected division in kind (rather than sale) and properly appointed referees to execute that division.

## Decision

- The Court of Appeal denied the motion to dismiss, holding the order was appealable because it conclusively determined the parties’ rights as to the method of disposing of the partnership real property.
- The court treated the referees’ work as implementation of a completed judicial determination rather than an adjudication of rights.
- On the merits, the Court of Appeal affirmed the trial court’s decision to divide the partnership real property in kind and to proceed through referees under the partition procedures.

## Legal Principles

- An order is treated as final for appeal purposes when it conclusively determines the parties’ substantive rights on the central issue, even if further steps remain to carry the determination into effect.
- In proceedings involving distribution of partnership real property, an order choosing the mode of disposition (in-kind division rather than sale) and directing execution through appointed referees may be considered sufficiently definitive to permit immediate appellate review.
- When the parties stipulate that accounting and indebtedness issues are settled, the court may focus solely on distributing partnership assets, and a ruling that fixes the disposition method can be final as to that controversy.

## Conclusion

The appellate court held that the order directing in-kind division of partnership real property and appointing referees was appealable because it finally determined the disposition method, and it affirmed the trial court’s selection of division in kind and use of referees to implement the division.


Swarthout v. Gentry, 73 Cal. App. 2d 847, 167 P.2d 501 (Ct. App. 1946)