Jeffers v. Screen Extras Guild, Inc.

[254]

DRAPEAU, J.

Demurrerwas sustained to plaintiff’s second amended complaint for libel, with leave to amend. Failing to file another amended complaint in time, upon motion of defendants, an order was made dismissing the action under the provisions of subdivision 3 of section 581 of the Code of Civil Procedure.

Plaintiff appeals from the order dismissing the

action;

from the order sustaining the demurrer; and from an order subsequently made, denying his motion under Code of Civil Procedure, section 473, to vacate and set aside the order of dismissal.

Some considerable portion of the briefs has been devoted to the two grounds of appeal last stated. These may be summarily disposed of by stating: First, that an order sustaining or overruling a demurrer, without further action by the court, is not appealable.

(Harmon

v.

De Turk,

176 Cal. 758 [169 P. 680] ;

Wood, Curtis & Co.

v.

Missouri Pac. Ry. Co.,

152 Cal. 344 [92 P. 868].) Secondly, while the order denying relief under Code of Civil Procedure, section 473, is appealable

(Phelan

v.

Superior Court,

35 Cal.2d 363 [217 P.2d 951]), it is not necessary to pass upon it because the appeal from the order of dismissal must be sustained. This court is required to determine whether, as a matter of law, the complaint states a cause of action. The order of dismissal entered on the minutes of the court was a final judgment from which an appeal could be taken.

(Colby

v.