Colby v. Pierce

JENNINGS, J.

Respondent Lucille M. Colby has moved to dismiss the appeals taken by appellant. The action in which the appeals have been prosecuted was instituted by respondent who filed a complaint wherein she alleged that she had suffered certain personal injuries through the negligence of appellant who was named as sole defendant in the action and whereby she sought to recover compensatory damages for such injuries. To the complaint thus filed appellant interposed a demurrer. No action was taken on the demurrer. At a somewhat later date an amended complaint was filed. To this amended pleading a second demurrer was interposed.

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Thereafter, on notice duly given, appellant moved the trial court to dismiss the action. This motion was granted and an order dismissing the action was entered in the court’s minutes on February 10, 1936. On the following day on

ex parte

application of respondent the court made and entered in its minutes a second order vacating the prior order dismissing the action. On February 17, 1936, the court made and entered in its minutes a third order denying appellant’s motion to dismiss the action. Separate appeals were taken by appellant from the order of February 11, 1936, vacating the prior order dismissing the action and from the order of February 17, 1936, denying appellant’s motion to dismiss. By stipulation of counsel these appeals have been consolidated and are presented on a single transcript.

In support of her motion to dismiss the above-mentioned appeals, respondent contends that neither of the orders from which an appeal has been taken is an appealable order and that therefore this court has no jurisdiction to entertain the appeals.

With respect to the two orders from which the appeals have been taken it is evident that the order which is of primary importance is that of February 11, 1936, whereby the court vacated its former order dismissing the action. If the order vacating the prior order of dismissal is valid the subsequent order of February 17, 1936, denying appellant’s motion to dismiss the action is not appealable since there is neither a formal judgment of dismissal nor an order providing for dismissal of the action. (Sec. 963, Code Civ. Proc.;