Commins v. Guaranty Oil Co.

JAMES, J.

The plaintiff in this action, at the conclusion of the testimony introduced in support of his main case, was nonsuited. An appeal was taken from the order granting the motion of nonsuit, the record of which order or judgment appeared only in the minutes of the court.

It is first claimed by the respondent that the order granting the motion for a nonsuit, not being followed by a formal judgment of dismissal, was not a final judgment in the sense that that term is used in section 939 of the Code of Civil Procedure, providing for appeals. Section 581 of the Code of Civil Procedure.provides that: “An action may be dismissed, or a judgment of nonsuit entered, in the following cases: ... 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissals mentioned in subdivisions . . . and 5 of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered, ...” In the case of

Kimple

v.

Conway,

69 Cal. 71, [10 Pac. 189], it was held that no appeal was allowed from an order granting a motion for a

nonsuit;

nor from a judgment of nonsuit. In that case, however, it was not finally affirmed that a judgment of nonsuit might not, by being entered in the judgment-book, become a final judgment from which an appeal might be taken. However, at the time that decision was rendered section 581 did not contain the provision which was inserted in 1897, making an entry upon the minutes of the court of the orders or judgments sufficient for all purposes. It would seem, under the present state of the law,

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that none of the orders or judgments provided to be made by section 581 of the Code of Civil Procedure need be entered in the judgment-book at all or appear in any record except that containing the minutes of the court. This conclusion is sustained by the decisions of

Matthai