Winter v. Rice

Opinion

LILLIE, P. J.

Marguerite Winter commenced an action to quiet title, for imposition of a constructive trust and for other relief. By substituted service (Code Civ. Proc., § 415.20, subd. (b)), copies of the summons and complaint were served on defendant Joseph Michael Rice. Defendant failed to answer or otherwise respond to the complaint within the time allowed by law and his default was entered by the clerk. (Code Civ. Proc., § 585, subd. (b).) Defendant’s motion to set aside the default was denied, as was his motion for reconsideration of the order of denial.

Defendant appeals from the order denying his motion to set aside the default.

Discussion

I

An appealable judgment or order is essential to appellate jurisdiction; the parties cannot, by any form of consent, make a nonappealable order

[682]

appealable.

(Horton

v.

Jones

(1972) 26 Cal.App.3d 952, 956 [103 Cal.Rptr. 399]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 38, p. 61.) Accordingly, while plaintiff does not suggest that the order from which defendant appeals is not appealable and both parties urge that we review the ruling on its merits, it is our duty to consider the question of appealability on our own motion

(Olson

v.

Cory

(1983) 35 Cal.3d 390, 398 [197 Cal.Rptr. 843, 673 P.2d 720]) and to dismiss the appeal if the order is not appealable.

(Collins

v.

Corse

(1936) 8 Cal.2d 123, 124 [64 P.2d 137];

DeGrandchamp