Norkin v. United States Fire Insurance

FOX, P. J.

Plaintiff purports to appeal from an order sustaining without leave to amend defendant’s demurrer to his second amended complaint. On November 14, 1962, a minute order was entered, stating; “Demurrer sustained without leave to amend. Counsel for moving party to prepare judgment.” No judgment has been entered.

“ It is well settled that an order sustaining a demurrer without leave to amend is not an appealable order or a final judgment. A reviewing court does not have jurisdiction to review an appeal of this type.”

(Beazell

v. Schrader, 205 Cal.App.2d 673 [23 Cal.Rptr. 189] ;

Tellefsen

v.

Key System Transit Lines,

187 Cal.App.2d 44 [9 Cal.Rptr. 299] ;

Beazell

v.

Schrader,

59 Cal.2d 577 [30 Cal.Rptr. 534, 381 P.2d 390].)

In the later

Beazell

case, the Supreme Court noted (p. 579) that Beazell upon a prior occasion had appealed from the order sustaining the demurrer to his complaint and that such order is non-appealable and that this purported appeal was dismissed in 205 Cal.App.2d 673 [23 Cal.Rptr. 189]. Thereafter, an order was made and filed which provided “It Is Ordered that the demurrer to the first amended

[288]

complaint of plaintiff is sustained without leave to amend; and that plaintiff take nothing from defendant.” The Supreme Court held (p. 580) that they would consider the foregoing order to incorporate an order of dismissal and interpret plaintiff’s notice of appeal as applying to the dismissal.

It will be noted that the later

Beazell