Charles v. City of Crescent City

[242]

WASTE, C. J.

Motion to dismiss appeal.

This action was commenced by plaintiffs, suing as taxpayers and owners of real property in defendant city, for the purpose of having certain assessments and tax levies for the year 1931-1932 declared irregular aiid void, and to enjoin the city and its officers from executing or accepting deeds to certain real property, belonging to these plaintiffs and others, and from selling the same.

Defendants filed a general demurrer and a motion to strike certain parts of the complaint. The motion to strike was not acted upon. The demurrer was overruled with permission granted to plaintiffs, at their request, to file an amended complaint, and a preliminary injunction was ordered to issue upon bond in the sum of $2,000.

To the amended complaint demurrers, both general and special, were interposed.

On December 20, 1937, the trial judge filed his “Buling of the Court” sustaining demurrers, without leave to amend, and dissolving the preliminary injunction.

A judgment of dismissal, based upon the above order and dated December 23, 1937, was entered December 28, 1937. A further order, reciting inadvertence of the court, and dated December 28, 1937, was filed and entered as part of the original judgment on December 30, 1937. This order of December 30th provided that, if an appeal from the judgment of December 28th were properly and duly taken by plaintiffs, the preliminary injunction theretofore issued should continue in force

pendente lite;

otherwise, if no appeal were taken, the preliminary injunction to be finally and perpetually dissolved.

On December 31, 1937, plaintiffs filed their notice of appeal from the order sustaining demurrers without leave to amend, and from the judgment of dismissal, save and except that part thereof continuing in effect the injunction

pendente lite.

A notice to the clerk, pursuant to the provisions of section 953a, Code of Civil Procedure, demanding the preparation of transcript, was filed March 15, 1938. The typed clerk’s transcript, properly certified by the clerk, was filed herein on May 6, 1938.