Delagrange v. Sacramento Savings & Loan Ass'n

Opinion

JANES, J.

Plaintiff Delagrange appeals after nonjury trial from an adverse judgment on his first amended complaint (hereinafter, “complaint”). Plaintiff attacks, however, only that portion of the judgment which ordered dismissal of the second and third causes of action of the complaint,

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contending that the allegations of the latter counts were sufficient to resist the demurrer of defendant Sacramento Savings and Loan Association, and hence that the judgment of dismissal based upon the sustaining of the demurrer must be reversed.

Defendant’s demurrer was both general and special, and was sustained with leave to amend as to the second and third causes of action. Plaintiff

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declined to amend and at the subsequent pretrial conference, the parties stipulated that the second and third causes of action be dismissed.

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No relief from the stipulation was ever sought. After trial of the first cause of action, judgment was entered that plaintiff take nothing thereon. With respect to the second and third causes of action, the judgment recites in part: “ . . . [T]he parties [have] heretofore stipulated that Judgment of Dismissal as to the Second and Third Causes of Action alleged in the First Amended Complaint may be entered upon the ground that the First Amended Complaint was not further amended within the prescribed time after demurrers to said Causes of Action were sustained, . . . .” Based upon the stipulation, the judgment further ordered dismissal of the second and third causes of action.

Faced with this record, we are confronted at the outset by the question whether plaintiff may appeal, after judgment, from that portion thereof entered pursuant to his stipulation.

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Resolution of that question is dispositive and makes unnecessary the consideration of other issues raised by the parties.

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