Evola v. Wendt Construction Co.

PETERS, P. J.

This is a motion to dismiss the appeal either because the order appealed from is nonappealable, or because the appeal, in any event, has been abandoned.

The plaintiff filed a two count complaint, the first count seeking judgment against Wendt Construction Company and its surety, United Pacific Insurance Company, and the second seeking judgment against Builders’ Control Service. After a first amended complaint had been filed, the court on July 12, 1957, sustained, without leave to amend, a demurrer of the United Pacific Insurance Company to the first cause of action. On August 9, 1957, judgment by default was entered in favor of plaintiff and against Wendt Construction Company. On August 12, 1957, the plaintiff appealed “from the Order Sustaining Demurrer Without Leave to Amend plaintiff’s First Amended Complaint to First Cause of Action.” On September 6, 1957, the court entered its judgment dismissing the complaint against United Pacific Insurance Company. On November 13, 1957, the plaintiff filed an abandonment of his appeal with the county clerk “without prejudice to any future appeal.” On the same day, he induced the trial court to enter a second judgment on its order of July 12th sustaining the demurrer without leave to amend. On November 14, 1957, plaintiff purported to appeal from that judgment.

Plaintiff then acquired knowledge of the entry of the first judgment. He now realized that the abandonment of his first

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appeal had been a mistake. On November 22, 1957, he filed a notice of motion to correct the date of entry of the judgment from September 5, 1957 (should be September 6th) to November 13, 1957, and to vacate the abandonment of the appeal. On December 4, 1957, the trial court denied the motion to correct the date of the judgment but granted the motion to vacate the abandonment of the appeal. After the plaintiff had filed his opening brief on the appeal defendant moved to dismiss the appeal on the grounds stated.

Without reference to what effect, if any, the abandonment of the appeal may have had, the first question presented is whether the appeal of August 12, 1957, can be considered an appeal from the judgment of September 6, 1957. There can be no doubt that the notice of appeal of August 12, 1957, was an attempt to appeal from a nonappealable order. An order sustaining a demurrer without leave to amend is a nonappealable order.