Graski v. Clothier

WHELAN, J.

The court sustained a demurrer to plaintiff’s second amended complaint with leave to amend within 30 days; she failed to amend and now appeals, contending her amended complaint states a cause of action.

[606]

Since we hold that the purported order appealed from is nonappealable. we do not touch upon the merit or lack of merit of plaintiff’s contentions.

Two of the three named defendants joined in a demurrer to the amended complaint; the third demurred separately. The two demurrers, ruled upon on different days, were sustained, and leave given to amend as to all defendants within 30 days of the sustaining of the demurrer first ruled upon.

Notice of the ruling on the first demurrer was given by the two defendants who had joined in it.

1

After the lapse of the time allowed, those two defendants noticed a motion to dismiss, under Code of Civil Procedure, section 581, subdivision 3. The motion was heard and granted on the date noticed.

The court’s ruling is embodied only in the following minute entry:

“Motion of defendants Dolores E. Clothier and Jack Buyer [sic] for order to dismiss.

“Plaintiff did not appear in person or by counsel. Defendant in court by counsel Dexter Penman. Motion granted.

“Entered 8-14-67”

The appeal has been taken from that minute order.

The minute order is not “in the form of a written order signed by the court and filed in the action. ’ ’

In 1963, Code of Civil Procedure, section 581d, was amended to read in relevant part as follows: “All dismissals ordered by the court shall be

in the form of

a written order signed by the court and filed in the action or in the docket in the justice court, as the ease may be, and such orders when so filed shall constitute judgments and be effective for all purposes, and the clerk in superior and municipal courts shall note such judgments in his register of actions in the case.” [Italics added.]