Worth v. Witt

California Court of Appeal May 7, 1923 No. Civ. No. 2572.Published

Before: Burnett

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Holding. The court held that an order sustaining a demurrer is not an appealable order, and an appeal filed prior to the entry of a final judgment of dismissal is premature and confers no jurisdiction upon the appellate court.

Issues

Whether an order sustaining a demurrer without leave to amend is an appealable order.
Whether an appeal filed before the entry of a final judgment of dismissal is valid.

Disposition. dismissed

Quotations verified verbatim against the opinion

“That such order is not appealable is settled beyond controversy.”

“The action of the court upon the demurrer can only be reviewed upon an appeal from the final judgment entered in the action.”

“Having attempted to appeal from an order from which the statute gives no right of appeal, appellant’s proceeding is abortive and this court has no jurisdiction.”

BURNETT, J.

Plaintiff brought the action to recover $2,750 which he claimed to be due for rent. Defendants owned an adjoining lot upon which were growing certain trees, the roots of which had intruded into the soil of the lot belonging to plaintiff. The latter gave notice to the former that he would demand a rent of $50 a month for the said use of his land. No attention was paid by respondents to said notice, and thereafter another notice was given that the rent would be $100 a month from a certain date. This was also ignored, and the complaint followed, based upon the theory that by reason of said notice and the implied acquiescence of the defendants the relation of landlord and tenant was created. The question thus suggested is novel and interesting, but, as we read the record, we have no jurisdiction to determine it in this proceeding.

A demurrer, both general and special in its nature, was interposed and the record shows the court sustained the demurrer without leave to amend. No other order or judgment appears in the transcript, and it is from this order that the appeal was attempted to be taken as shown by the following notice: “Please take notice: That plaintiff above named hereby appeals to the District Court of Appeals . . . from the whole of that certain order and judgment made and entered in this action by said court on the 21st day of October, 1921, wherein and whereby said court sustained defendants’ demurrer to plaintiff’s complaint without leave to plaintiff to amend, and from the whole thereof.”

In the written request to the clerk for the preparation of the transcript plaintiff recited also that he “desires to appeal and has appealed from ruling of this court on defendants’ demurrer to plaintiff’s amended complaint, wherein and whereby said demurrer was sustained without leave to plaintiff to amend.”

That such order is not appealable is settled beyond controversy. The action of the court upon the demurrer can only be reviewed upon an appeal from the final judgment entered in the action.

(Wood, Curtis & Co.

Missouri etc. Ry. Co.,

152 Cal. 344 [92 Pac.

868]; Litch

Kerns,

8 Cal.

[136]

Worth v. Witt

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BURNETT, J.

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